P.N. Shinghal, J.
1. This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellant's application dated March 18, 1969, under Section 488 of the CrPC, 1898, hereinafter referred to as the Code.
2. Appellant Raj Kumari Vijh was married to respondent Dev Raj Vijh in Delhi, in June 1950. It is the admitted case of the parties that they were living separately from 1953. The appellant filed her first application for maintenance under Section 488 of the Code, in 1955, but it was dismissed. The respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh). It was ultimately dismissed on appeal on 29-3-1968. In the meantime the appellant filed a suit against the respondent for recovery of her 'stridhan' in Delhi in 1956. It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6458/--. The appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife. Nothing came out of it and she filed the present application under Section 488 of the Code in the Court of the Delhi Magistrate on March 18, 1969. It was stated in the application that the appellant had lived with the respondent; in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S. Nareja. Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs. 6458/- on account of her 'stridhan.' It was stated in the application that the parties lived at Lampur as husband and wife and there was cohabitation. The appellant prayed for an order allowing her Rs. 450/- per month for maintenance as the respondent had sufficient means but had neglected or refused to maintain her,
3. The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur. An objection was however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of resjudicata. An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never resided permanently or temporarily in Delhi. We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed The Magistrate passed an order for production of evidence. The respondent thereupon prayed that the question of jurisdiction may be decided before recording the evidence. That was not agreed to by the Magistrate. He made an order on November 19, 19C9 that the question of jurisdiction must await the recording of the evidence on the whole case. The respondent did not challenge that order or apply for permission to file an additional reply. On the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellant's witnesses did not even known him. Both the parties led their evidence, although it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits. He did not even apply for permission to file any additional reply when the Magistrate recorded the appellant's evidence on her application for maintenance as a whole.
4. Ultimately the Magistrate made his final order on May 21, 1973. He took the view that there was no specific denial of the appellant's allegation that the parties last resided together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968. He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first application, was not pressed by the respondent and, after referring to the entire evidence in details, he reached the conclusion that he had the jurisdiction to entertain the application, and granted maintenance allowance at the rate of Rs. 125/- per month, with effect from March 18, 1969, along with an order regarding the mode of payment of the arrears. The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case to the High Court on November 30, 1973, for dismissal of the application (under Section 488 of the Code) on the ground that the Delhi Magistrate had no jurisdiction to entertain it. As the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the maintenance allowance, the appellant has come up to this Court by special leave.
5. In its impugned judgment dated March 1.4, 1974, the High Court has recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant's application under Section 488 of the Code. Counsel for the appellant has vehemently urged that the finding of the High Court is incorrect, but as it is a finding of fact, we shall proceed on the assumption that it does not call for interference in this appeal.
6. The question however remains whether Section 531 of the Code would be applicable to the case? The High Court has held that the section would not be applicable, and that is why it has passed the impugned order for the dismissal of the application of the appellant under Section 488 of the Code. The High Court has taken that view for the following reasons,:
(i) The objection as to jurisdiction was raised 'right at the first instance by the husband.
(ii) The respondent 'specifically reserved his right to file a written reply on merits after the question of jurisdiction was decided,
(iii) As the respondent had reserved his right to lead evidence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on merits...
(iv) There was 'obvious prejudice and failure of justice' to the respondent as he never led evidence on the merits.
(v) It was necessary for the appellant to prove that the respondent had refused and neglected to maintain her, and that 'obviously requires an opportunity to be given to the husband to prove his case, if it be one, that he has not refused or refuses or neglected to maintain his wife or what his income and means is.
(vi) 'Before a decision on merits can be given the husband has the undoubted request (sic) to lead evidence on merits.
(vii) A proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to Section 531 of the Code, when an objection has been taken against its maintainability, for otherwise the provision relating to jurisdiction would become nugatory. Section 531 'can cure the infirmity after the case has been fought on merits.
We have examined these grounds, but we are constrained to say that they are not tenable in the facts and circumstances of this case.
7. Section 531 of the Code reads as follows,
531. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice.
The section therefore relates to a defect of jurisdiction. As has been stated by this Court in Purushottarndas Dalmia v. State of West Bengal AIR 1961 there are two types of jurisdiction of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try particular kinds of offences, and (2) its territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the latter is not of a peremptory character and is curable under Section 531 of the Code. Territorial jurisdiction is provided 'just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the 'Witnesses who have to appear before the Court.' Sub-section (8) of Section 488 in fact provides that proceedings under the section 'may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' This therefore is ordinarily the requirement as to the filing of an application under Section 488 within the limits of the jurisdiction of the Magistrate concerned.
8. So where a Magistrate has the 'power' to try a particular application under Section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why Section 531 of the Code should not be applicable to the order made by him. It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of Section 531.
9. The first reason why the High Court has not given the benefit of Section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent 'right at the first instance.' Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the Magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the impression that Section 531 of the Code, would, at any rate, validate his order. That, according to the counsel, amounted to an order by the Magistrate giving ' the jurisdiction to himself by virtue of Section 531. Reliance in this connection has been placed on Radharani v. Rahim Sardar AIR 1946 Cal 459; Sakuntala v. Thirumalayya (1966) 2 Mad LJ 326; State v. Tavara Naika; AIR 1959 Mys 193;' Sultan Chand v. Yogindra Nath Raz AIR 1944 Pesh 25 and Satwant Singh v. Smt. Jaswant Kaur 1956 All LJ 134.
10. As is apparent, Section 531 does not entitle a Magistrate, who is not a Magistrate of the class referred to in Sub-section (1) of Section 488, to proceed with an application for maintenance. In fact even a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under Sub-section (8) of Section 488. The true meaning of Section 531 is that while it will not uphold an order passed in proceedings willfully taken in a wrong place, or enable a Magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a Magistrate, who is otherwise duly empowered to make an order under Sub-section (1) of Section 488 of the Code, cannot proceed with an application under that sub-section for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction. Section 531 cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contentions about the correct place of the proceeding, and the Magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. In other words, there is no reason why, in such a case, Section 531 should not be applicable merely because the Magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference to Section 531 in passing and not for the purpose of assuming jurisdiction under it. If the Magistrate, in this case, had thought of assuming jurisdiction under Section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdiction.
11. We have gone through the cases which have been cited by the counsel for the respondent. Radharani v. Rahim Sardar AIR 1946 Cal 459 (supra) was a case where the Magistrate proceeded with the trial in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction. This is however not so in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making a reference to the entire evidence which was led on the point. Moreover he took note of the fact that the respondent had not specifically denied that he lived at village Lampur, with the appellant. This is therefore not a case where the Magistrate proceeded with the application even though he had the knowledge that it did not fall within his jurisdiction. The same is the position in regard to Sakuntala v. Thirumalayya (1966) 2 Mad LJ 326 and it also cannot avail the respondent. We have gone through State v. Tayara Naika AIR 1959 Mys 193 . It was not a case under Section 488 of the Code. What has been said there is that the curative provisions of Section 531 should not be an excuse for overlooking a material irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial. It does not therefore lay, down anything different from what has been stated in Radharani v. Rahim Sardar (supra). It was a case where the accused was committed to a wrong sessions division, and the mistake was corrected because the trial had not commenced. Sultan Chand v. Yogindra Nath Das AIR 1944 Pesh 25 was also not a case under Section 488 of the Code. It has been held in that case that when the question of jurisdiction has been raised before the trial Magistrate, it is his duty to determine the point, otherwise the provisions as regards jurisdiction would never be enforced and that, Section 531 cannot be applied to such a case. As has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the application was maintainable in his court. This is therefore a different case. Satwant Singh v. Smt. Jaswant Kaur 1956 All LJ 134 was a case under Section 488 of the Code. It has been held there that where the question of jurisdiction had been raised before the trial Magistrate, it was his duty to determine the point, and that he cannot proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction. As has been shown, this was not so in the present case. It would thus appear that the High Court erred in taking the view that Section 531 would not be applicable to this case merely because an objection as to jurisdiction was raised by the respondent 'right at the first instance.
12. The second ground mentioned by the High Court is that Section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decided. We find that this is clearly a misstatement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved any such right to file a written reply on the merits at a later stage, after the question of jurisdiction was decided against him. On the other hand, we find that the Magistrate specifically overruled the objection of the respondent, and made an order directing the parties to adduce their evidence on the whole case and specifically rejected the respondent's application for deciding the question of jurisdiction in the first instance. The Magistrate has clearly stated that an order was made by him for the production of evidence 'in the case', and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole. The Magistrate has further stated that the respondent did not file his further or additional reply even then. The High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on. As has been shown, no such reservation was permitted by the Magistrate, and counsel for the respondent was not able to show how the respondent could unilaterally make such a reservation for himself. It may be that, in a given case, it may be advisable for a Magistrate to confine the evidence of the parties, in the first instance, to any preliminary objection relating to jurisdiction, and to decide the controversy on the merits thereafter, but as this was not so in the present case, we are unable to find any justification for the second ground mentioned by the High Court.
13. The third ground of the High Court is also untenable, for it has refused to apply Section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not deliberately give up that right. Here again, counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a preliminary question and had passed an order for the production of all the evidence in the case. If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage.
14. The High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits. But the High Court failed to appreciate that the respondent had to thank himself for that predicament. He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that, effect. He also knew that the Magistrate had called upon the parties to lead all their evidence. The appellant obeyed that order and examined her witnesses. The respondent persisted in thinking that the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it sufficient to confine his evidence to the question of jurisdiction. So if he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice. As it is, counsel for the respondent has not been able to refer to any application of the respondent, whether oral or documentary, expressing a desire to lead his evidence on the merits. The fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits, and confined his evidence to the question of jurisdiction. It may be that, as has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.
15. The fifth ground mentioned by the High Court is that before an order could be passed under Section 488(1) it was necessary to prove that the husband had refused or neglected to maintain his wife, and that required an opportunity to be given to the husband to prove his case. But the argument is futile because the respondent did not set up any defence on the merits. On the other hand, the Magistrate found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her.
16. In its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits. It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magistrate.
17. Lastly, the High Court has taken the view that a proceeding cannot be maintained by a court which has no jurisdiction by simply taking recourse to Section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction would become nugatory. This point has already been considered earlier and need not be re-examined.
18. It is thus quite clear that the High Court committed a serious error of law in refusing to invoke Section 531 in the facts and circumstances of this case. It is not in controversy that the Magistrate who took the proceedings, on the appellant's application under Sub-section (1) of Section 488, was one of the Magistrates mentioned in that sub-section. The respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their evidence. He specifically rejected the application for confining the evidence to the question of jurisdiction, or to try that as a preliminary issue. It is therefore futile to contend that the Magistrate gave himself jurisdiction by recourse to Section 531 of the Code. On the other hand in his final order, He set out the points which arose for consideration on the question of jurisdiction, made a mention, at length, of the entire evidence on that question and took into consideration the conduct of the respondent and the case law as well as the respondent's reply. All that led him to the conclusion that he had jurisdiction to try the application. There is therefore no reason why Section 531 should not be held to be applicable to this case. As has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lead his evidence on the merits. As we have pointed out, he did so deliberately and in defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case. The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and made an order that he shall make a monthly allowance of Rs. 125/- per mensem for her maintenance.
19. The appeal is allowed and the impugned order of the High Court dated March 14, 1974, is set aside, with costs.