K.K. Narendran, J.
1. The short point that arises for consideration is whether a question of jurisdiction raised by the accused before the commencement of the trial can be postponed for decision after the examination of the complain: ant and witnesses. The accused in C. C. No. 74 of 1980 on the file of the Addl Judicial Magistrate of the 1st Class (II), Ernakulam is the petitioner. The respondent appointed the petitioner as their agent at Cochin to attend to their ships which called at the Port of Cochin. On the allegations that the petitioner misappropriated collections made on behalf of the resondent the above complaint was filed. The offices air leged against the petitioner are those under Sections 403,, 409, 420 and 477-A I.P.C. When the case came up for trial, the petitioner contended that the court has no territorial jurisdiction to try the case. As directed by the court the petitioner filed M. P. No. 456 of 1981 raising the, question of jurisdiction and requesting the court to decide the question of jurisdiction before the commencement of the trial. The learned Magistrate disposed of that petition by the following order:
To be considered after the examination of the complainant and witnesses.
The petitioner has challenged the above order in this Criminal Miscellaneous Case.
2. Sections 177 and 462 of the Criminal P. C. 1973 read :
177. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdictiofi it was commited.
462. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
The rule is that an offence is to be inquired into and tried by a court within whose territorial jurisdiction it was committed. There are of course exceptions to this rule. Simply because Section 462 of the Code is there to save decisions of courts which had no territorial jurisdiction to try the case, it cannot be said that a Magistrate can be indifferent on the question of jurisdiction. 'The lex fori or law of jurisdiction in which relief is sought controls as to all matters pertaining to remedial (i. e. procedural) as distingushed from substantive rights. If the question of jurisdiction is raised, the trial can be commenced only after deciding that question. Otherwise, Section 177 of the Code will become otiose Not only that, the application of Section 462 arises only after the decision is rendered by a court which has no territorial jurisdiction. The decision regarding jurisdiction is to be given on the basis of the allegations made and the averments contained in the complaint of the charge as the case may be. It is not the evidence that is yet to be ad- duced in the case that is going to confer jurisdiction on the court. So. the learned Magistrate, was clearly in the wrong in postponing the decision en the question of jurisdiction by the order impugned,
3. In coming to the above conclusion I find support in the. following decisions. In State v. Tavara Naika AIR 1959 Mys 193 : 1959 Cri LJ 1004 it is held: (at pp. 1004, 1005 of Cri LJ):
But at the same time, it appears to us, that the fact that the curative provisions of Section 531 may be available at a later stage, should not be an excuse to overlook a material irregularity pertaining to jurisdiction, when it is brought to the. notice of the Court before the commencement of the trial. In the present case, the defect or irregularity having been brought to the notice of the Court even before the commencement of the Sessions trial, we think it proper that the irregularity should be avoided.
In Ramnath v. Rekharani 1975 Cri LJ 1139 (Cal) it is held (at p. 1141):
Section 531 has got to be applied after the decision or finding or order is arrived at by any Magistrate or n Criminal Court in a wrong jurisdiction. If any objection to the territorial jurisdiction is taken in any proceeding tr case before any Magistrate it would be the duty of the Magistrate to see whether he had according to law territorial jurisdiction to deal with the same. He cannot take resort to Section 531 ard assume jurisdiction which will not be legal. This section, therefore is applicable after the decision or finding is made by a higher Court and not by the trying Magistrate himself.
In Brahmanand Goyal v. N. C. Chakra-borty 1974 Cri LJ 1079 the Division Bench of the Calcutta High Court has referred to State of Madhya Pradesh v. K. P. Ghiara AIR 1957 SC 196 : 1957 Cri LJ 322 wherein it has been said: (at p. 1080 of Cri LJ):
The venue of enquiry of trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202. Criminal Procedure Code.
4. The relief prayed for by the petitioner is only to quash the impugned order made by the learned Magistrate in M. P. No. 456 of 1981. As no relief for quashing the complaint filed by the respondent before the learned Magistrate is prayed for, I need not consider the question whether the learned Magistrate has jurisdiction to try the complaint. Hence, I am not deciding that question even though counsel on both sides addressed arguments on the question of jurisdiction and referred to a number of authorities.
5. A contention that the order impugned cannot be challenged before this Court in view of the bar in Section 397(2) of the. Code that, the High Court shall not exercise its revisional powers in relation to interlocutory orders was also taken by the learned Counsel for the respondent. First of all, the Jurisdiction invoked by the petitioner in this case is one under Section 482 of the Code. It is clear from Section 482 that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court under the section. The question involved is one of jurisdiction. If, as a matter of fact, the learned Magistrate has no jurisdiction to try the complaint and if the Magistrate proceeds with the complaint it will be an abuse of the process of the court and for the purpose of securing the ends of justice interference can be made by the High Court in exercise of its inherent powers under Section 482 of the Code.
6. In the result, the order impugned is set aside and the learned Magistrate is directed to consider the question of jurisdiction raised by the petitioner in M. P. No. 456 of 1981 and take a decision as expeditiously as possible and, at any rate, within a month from today. The Criminal Miscellaneous Case is allowed as above.