(1) These petitions have been filed either to direct the Chief Presidency Magistrate to try the various calendar cases pending before him or to transfer them to the file of the Sub Divisional Magistrate, Poonamallee. In these cases after the issue of summons to the accused a preliminary objection was taken by the accused to the trial of the cases by the Chief Presidency Magistrate on the ground that the Chief Presidency Magistrate has no territorial jurisdiction to try the cases. In the affidavit filed in support of these petitions on behalf of the complainant in paragraph 4 it is stated thus:
"An objection was raised by the accused in C.C. No. 3546 of 1958 that the Presidency Magistrate's court has no jurisdiction and the place where the factory is situated is within the jurisdiction of the Sub Divisional Magistrate, Poonamallee. On verifying the records at the Collector's office I find that this factory in which the offence was committed is also situated within the jurisdiction of the Sub Divisional Magistrate, Poonamallee."
In paragraph 5 it is stated that every offence will have to be enquired into and tried by the court within the local limits of whose jurisdiction the offence is committed. In paragraph 6 it is stated that it has become necessary that the mistake in filing the complaint before the Chief Presidency Magistrate should be condoned and the case be directed to be heard by the chief Presidency Magistrate himself or the case may be transferred to the file of the Sub Divisional Magistrate Poonamallee. It is clear from the averments made in the affidavit that the objection of the accused to the Chief Presidency Magistrate trying the case is with regard to his territorial jurisdiction. This objection is well founded. It is only the Sub Divisional Magistrate, Poonamallee, who has territorial jurisdiction to try these cases. In view of the objection raised by the accused the complainant prays that these cases may better be tried by the Chief Presidency Magistrate or they may be transferred from the file of the Chief Presidency Magistrate to the file of the Sub Divisional Magistrate, Poonamallee. These petitions are resisted by the accused.
(2) I may at once dispose of the prayer to direct the Chief Presidency Magistrate to try the cases. This court has no power to direct any magistrate to enquire into a case who has no territorial jurisdiction to try the case unless it be the means of transfer of the case. If at the time of the institution of the proceedings a court has no territorial jurisdiction to try those proceedings then the High Court would have no power to invest that court with jurisdiction to try the proceedings. In short the High Court cannot invest a court with territorial jurisdiction which it does not possess. That prayer cannot, therefore, be granted.
(3) The only other prayer t be considered is with regard to the transfer of the cases from the file of the Chief Presidency Magistrate to the file of the Sub Divisional Magistrate, Poonamallee. It is contended on behalf of the respondents-accused that such transfer cannot be effected. In support of their contention reliance is placed on the decisions in Asst. Sessions Judge, North Arcot v. Ramammal, ILR 36 Mad 387, In re Sikka Gounden, 17 Mad LW 69: (AIR 1923 Mad 326), which is followed in Subbanna v. Emperor, 1939 Mad WN 517, and also on certain observations contained inRangamannar Chetty v. Emperor, 1935 Mad WN 649. The above decisions fully support the stand taken by the defence. But it seems to me that the decision in ILR 36 Mad 387 which is the basis of all the subsequent decisions and which is a Bench decision requires reconsideration.
In the above case the question that arose for determination was whether the case committed to the court of session, North Arcot division can be heard by the Sessions Judge of that division when the offence committed by the accused was in a place within the jurisdiction of the Sessions Judge, Salem. There is no doubt that the magistrate who committed the accused to the sessions had no jurisdiction to enquire into the case (when I say jurisdiction I mean territorial jurisdiction and not the power of the magistrate to try the case which is not in dispute). It has been held that in such a case the order of committal cannot be quashed merely on the ground that the case was enquired into by a magistrate who had no territorial jurisdiction to try the case because S. 531 of the Criminal Procedure Code will apply unless it appears that such an error has occasioned failure of justice.
Commitment cannot therefore be quashed; but objection was taken before the trial in the Sessions Court that the accused were committed to a wrong sessions court. The question was whether a wrong sessions court could try the accused though the commitment cannot be quashed. In Queen Empress v. Thaku, ILR 8 Bom 312, it was held that an order of commitment by a magistrate is an order of a criminal court within the meaning of S. 531 Cri.P.C. and that such an order directing commitment, to a court of session which has no territorial jurisdiction cannot be set aside unless failure of justice has been occasioned. It was further held that as under S. 177 Cri.P.C. the offence ought to be tried within the sessions division in which it is said to have been committed the court will transfer the case to the Sessions Court at Ahmednagar unless the Sessions Judge at Ahmednagar reports that this course will be attended with public inconvenience or is likely to defeat the ends of justice. The Sessions Judge of Nasik having reported that no inconvenience or failure of justice will be caused by the transfer of the case to Ahmednagar the court directed that the case to be transferred for trial by the Sessions Judge at Ahmednagar.
In short notwithstanding the fact that the Sessions court at Nasik had no jurisdiction to try the case, the case was transferred to the file of the Sessions Judge, Ahmednagar who had jurisdiction to try the case. The decision in ILR 36 Mad 387 refers to this case and the learned Judges observe:
"The learned Judges in that case having to deal with a commitment made to a court not having jurisdiction did not quash the commitment but directed the transfer of the case to the court having jurisdiction. But the Privy Council has pointed out in the Ledgard v. Bull, ILR 9 All 191 P. C. that a transfer from a court having no jurisdiction would not render the proceedings legal. The Allahabad High Court in Queen Empress v. Ramdei, ILR 18 All 350 followed a similar course but ILR 9 All 191 was not apparently brought to its notice.
We do not, therefore, think that we could be justified in upholding the commitment and directing the transfer of the case to the Sessions court of Salem. We must hold that the commitment is illegal and set aside the order of the Sub Magistrate of Tirupatturi." But the learned Judges did not pass any consequential order except setting aside the order of the Sub-magistrate because an appeal against the judgment of the District Munsif in a connected suit was pending.
It is quite clear that the decision in ILR 36 Mad 387, proceeds on the footing that if the proceedings in a particular court are void then those proceedings cannot be transferred to any other court having jurisdiction to entertain the proceedings. In coming to that view reliance was placed on the ruling of the Privy Council in ILR 9 All
191. In the Privy Council decision the facts relevant for the purpose of the case are set out at page 202:
"Their Lordships state as follows: The circumstances in which the plea was taken are these: the plaint was originally filed in the Court of the Subordinate Judge of Cawnpore on 2-2-1882. Whereas S. 22 of Act XV of 1859 provides that no action for infringement shall be maintained in any court other than the principal court of original jurisdiction in civil cases within the local limits of whose jurisdiction the cause of action shall accrue or the defendant shall reside as a fixed inhabitant. The principal court of original jurisdiction was the court of the District Judge. On 15-2-1882, the defendant personally signed along with the plaintiff and his pleader a petition praying the District Judge to withdraw the case from the court of the Subordinate Judge and to try the suit in his own court. On the same day an order was made in the District Court in these terms: 'That the case be transferred from the Subordinate Judge's court to the file of this court and the date will be fixed hereafter.' It is admitted that the District Judge had no authority to issue that order, unless such authority was given him by Act X of 1877, S. 25. The suit was entered in the file of the District Court, and has since proceeded as a transferred suit, originally instituted in the court of the Subordinate Judge. The defendant objected that notwithstanding to his agreeing to the transfer of the case to the file of the District Court, in view of the fact that the proceedings were not instituted in the court of competent jurisdiction, the transfer would be void. Their Lordships in dealing with this contention stated as follows at page 203: "The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit if it were competently brought and their Lordships do not doubt that in such a case, a defendant may be barred, by his own conduct from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject matter of a suit the parties cannot by their mutual consent convert it into a proper judicial process although they may constitute the judge their arbiter and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which if objected to at the time, would have led to the dismissal of the suit. The present case does not come strictly within these authorities because the defendant's plea was stated before issue was joined on the merits, and in reliance on that plea he objected to the case being tried and withheld his objections to the validity of the patent." Finally their Lordships held that they were unable to hold that such a consent to a transfer operated as waiver of the defendant's preliminary pleas and they were consequently of opinion that the District Judge instead of repelling ought to have sustained the defendant's plea. In the result they humbly advised Her Majesty that the suit must be dismissed on the ground that the suit was not competently brought. In short they held that the transfer of the suit from the subordinate judge's court to the District Court which had jurisdiction to try was not a valid transfer and that it could not be held to have been properly instituted before the District court. In coming to this conclusion their Lordships referred to the decision in Pearylal v. Komal Kishore Dassia, ILR 6 Cal 30, and stated that the superior court cannot make an order of transfer of a case under S. 25 C.P.C. (present S. 22) unless the court from which the transfer is sought to be made has jurisdiction to try it.
Having regard to the terms of S. 25(22) their Lordships entirely approve of that decision ILR 6 Cal 30. In ILR 6 Cal 30 the suit was tried by the subordinate Judge of Rungapore. Before the appeal was made the land which formed the subject matter of the suit was transferred to some other district. The appeal, however, was inadvertently filed in the district court of Rungapore which owing to the transfer of the subject matter of the suit had no jurisdiction to hear the appeal. The Calcutta High Court held that the court to whose jurisdiction the subject matter of the appeal has been transferred alone is competent to hear the appeal and that the appeal which was filed in the original district court was invalid and they added:
"We can under S. 25 of the Civil Procedure Code direct the transfer of an appeal only from a court having jurisdiction to receive and try it. We have no power to authorise any court to assume jurisdiction to receive and hear any appeal contrary to the usual course prescribed by the code. We, therefore leave the appellant to take the necessary steps to place his appeal in the Pubna court and he can then renew his application to us which is otherwise unobjectionable."
They did not discuss the point as to why if an appeal was filed in a wrong court it should not be transferred to the appropriate court having jurisdiction. The judgment contains no discussion of any principle but their Lordships of the Privy Council have approved of this decision and have come to the same conclusion that the proceedings which are wrongfully instituted in a court which is not competent to entertain them and is not empowered to try the case cannot be transferred to another court of competent jurisdiction. In the Privy Council case, ILR 9 All 191, there was no question of territorial jurisdiction. It was instituted before a court which was incompetent to try it not because of want of territorial jurisdiction but because of a prohibition contained in the Act that no action shall be maintained in any court other than the principal court of original jurisdiction in a civil case.
The principal court of original jurisdiction in civil case is the district court. The proceedings can, therefore, be instituted only in the district court. They cannot be instituted in any other court. Proceedings instituted in the subordinate judge's court will be void. In short it is on a par with a case which sometimes arises occasionally or very rarely. Suppose for instance a suit is instituted in the court of the district Munsif in respect of a claim for Rs. 5000. The defendant does not even object to the jurisdiction of the district munsif's court. The court passes a decree. Notwithstanding the fact that the defendant has not raised any objection to the trial of the suit, still the proceedings would be null and void as pointed out in Ramnarain Joshy v. Parameshwar Narain Mahta, ILR 25 Cal 39.
In that case an appeal the subject matter of which was over Rs. 5000 in value was wrongly presented and filed in the District Judge's Court and was subsequently upon application by the appellant withdrawn by the High Court under S. 25 C.P.C. and registered as an appeal to that court. The order of withdrawal left it open to the respondent to raise objection on the score of want of jurisdiction of the district court at the time of the hearing of the appeal. It was held that "when an appeal is transferred under S. 25 C.P.C. it must be heard subject to all the objections which could be taken before the court from which it has been transferred and that the High Court, therefore, has no jurisdiction to hear the appeal."
The learned Judges refer to the decision in ILR 9 All 191 and say that though this case is not on all fours with the case they are dealing still the reasons given in that decision would be applicable and that if that court could not try a suit which was transferred from a court which had no jurisdiction to try it, it is difficult to see how it can hear an appeal transferred from a court which had no jurisdiction to hear such appeal. They were of the view that if the lower court had no jurisdiction to try the case be the defect in jurisdiction with reference to the value or with reference to the situation of the property in dispute or with regard to any other matter which concerns jurisdiction, the High Court could have no jurisdiction. They put it on the ground that if the trial court had no jurisdiction to try the case, the principle of the decision in ILR 9 All 191 would apply. The decision in ILR 36 Mad 387 follows the decision in ILR 9 All 191. The decision in 17 Mad LW 69: (AIR 1923 Mad 326) also follows ILR 9 All 191 & the same decision is again followed in 1939 Mad WN 517. But in Ganapathi Chetti v. Rex, ILR 42, Mad 791: (AIR 1920 Mad 824), which is a decision of another Bench of this court the decision in ILR 36 Mad 387 is referred to by Sadasiva Iyer J. He observes:
"It is unnecessary for me to express any final opinion whether the decision in ILR 18 All 350, which seems to be opposed to the decision in ILR 36 Mad 387 does not take the better view. I shall, therefore, proceed on the footing that in the matter before us, ILR 36 Mad 387 should be followed."
The decision, therefore, purports to follow the decision in spite of the fact that the case which should have been committed only to the sessions court at Chingleput had been committed to the High Court sessions. Sadasiva Ayyar J. justifies the trial by the High Court sessions on the ground that the case can be tried by the High Court by transferring the case to its original jurisdiction under S. 526 cl. (1) sub-cl (1)(d) and (e) and by passing an order that the offences committed outside the jurisdiction of Madras be also tried in the High Court criminal sessions along with other offences which were committed in Madras. If that power is exercised, the trial before the Madras sessions becomes legal and it then becomes unnecessary to decide the other questions. Spencer J. who was a party to the decision in ILR 36 Mad 387, observed that the particular case differed from the case in ILR 36 Mad 387 and that under S. 526 cl. (1) sub-cl. (1), the High Court has empowered to make the direction that an offence be enquired into or tried by any court not empowered under Ss. 177 to 184 but in other respects competent to inquire into or try such offence.
In ILR 42 Mad 791: (AIR 1920 Mad 824), the case was committed to a wrong Sessions Court but nevertheless the learned Judges held that the wrong Sessions Court could still try the case by exercise of the power under S. 526 cl. (1) sub-cl (1) Cri.P.C. (d) and (e). But it is not quite clear from the judgment, whether that power was exercised by passing an order to that effect. In 1935 Mad WN 649, Burn J., without referring to any decision merely held that if there is no jurisdiction in a court where the case was instituted then the High Court cannot transfer it to a court of competent jurisdiction.
In Rathnavelu v. K. S. Iyer, ILR 56 Mad 996: (AIR 1936 Mad 765) the facts are these: Two persons were charged for cheating in two cases and were tried by the Sub-Divisional Magistrate of Vellore. The accused objected to the court at Vellore having jurisdiction to try the case. The Sub-divisional Magistrate overruled the objection, tried the accused and acquitted them. A revision was filed against the order of acquittal. Lakshmana Rao J., dismissed the revision petition observing that the Sub-Divisional Magistrate of Vellore had clearly no jurisdiction to try the case. He also observed that all his remarks relating to the merits of the case must be regarded as mere obiter dicta.
The complainant filed a fresh complaint before the Chief Presidency Magistrate on the same facts. The Chief Presidency Magistrate dismissed the complaint accepting the plea of autre fois acquit raised by the accused. Then the complainant came to this court with another revision petition against the order of dismissal. A Bench of this court consisting of Jackson and Mockett JJ. held that the plea of autre fois acquit was available only if the acquittal was by a court of competent jurisdiction and that the court without the territorial jurisdiction is not a court of competent jurisdiction. The question whether the Sub-Divisional Magistrate had territorial jurisdiction must be decided by the Chief Presidency Magistrate. The Chief Presidency Magistrate was directed to hear the matter.
The Chief Presidency Magistrate took evidence and held that the Sub-Divisional Magistrate, Vellore, had no territorial jurisdiction. He, therefore, ordered the third Presidency Magistrate to dispose of the case according to law. Again there was a revision petition filed against his order of the Chief Presidency Magistrate and this was heard by a Full Bench of this court and the learned Judges held that the only defect in the jurisdiction of the Vellore Sub Divisional Magistrate is want of territorial jurisdiction and that this defect is curable under S. 531 Cri.P.C. and therefore the order of acquittal passed by the Sub-Divisional Magistrate, Vellore could not have been set aside on the ground of want of territorial jurisdiction. It was finally held that these judgments cannot be ignored by the Presidency Magistrates of Madras who are not tribunals superior to the Sub-Divisional Magistrate, Vellore.
The learned Judges held that the complaints to the Chief Presidency Magistrate were barred by S. 403 Cri.P.C. I am referring to this decision just to indicate that notwithstanding the fact that a court had no territorial jurisdiction still the proceedings of that court are not void but they are only voidable if I may use that expression. When the proceedings reach the final stage and they are disposed of by the court which has no territorial jurisdiction, the defect is curable under S. 531 Cri.P.C. An analysis of the above decisions shows that the cases can be classified under two categories: (1) cases which are void ab initio and (2) cases in which the proceedings are not void ab initio but are irregular and which are curable under S. 531 Cri.P.C. if a final order is passed. In the Privy Council case, ILR 9 All 191 the proceedings in the sub court are absolutely void ab initio.
There was a statutory prohibition to the trial of the suit by the sub-court and therefore the proceedings were void ab initio. The Privy Council decision must therefore be confined only to such cases, i.e., where the proceedings are void ab initio. In the ILR 36 Mad 387 which followed ILR 9 All 191 this aspect of the matter does not appear to have been considered. It seems to me that distinction has to be made between a case where the proceedings are ab initio void and a case where the proceedings are not void ab initio but are only irregular. To the former class of cases the principle laid down by the Privy Council will certainly apply as it dealt with such a case. The question is whether such a principle can apply to the latter class of cases also. In ILR 36 Mad 387, ILR 9 All 191 has been followed without any discussion though the Privy Council case may well be distinguished. The decision in ILR 36 Mad 387, requires reconsideration. I would, therefore, direct that the papers be placed before my Lord the Chief Justice for orders as to reference to a Full Bench for an authoritative pronouncement.
(4) The employees State Insurance Corporation Madras, filed six charge sheets against Sri Haji Mohammad Ismail Sahib, in regard to two tanneries, Sri V. S. Raghavan, in regard to Revathi Studios, Sri. M. H. M. Munes, in regard to Royal Studios, Sri Noor Kazi, in regard to Amco Studios and Sri K. S. Prakash Rao and Sri K. Venkatarama Aiyar in regard to Prakash Studios, under the Employees' State Insurance Act. The complaints were taken on file by the Chief Presidency Magistrate, Madras and numbered as C. C. Nos. 2396, 2397, 3545, 3546, 3547 and 3548 of 1958.
(5) In regard to the location of the factories and establishments and the address of the registered office, if any, in the city of Madras, and the addresses of the offices of the principal employers in these cases, the following information is forthcoming:
(6) In C. C. No. 2396 of 1958, the factory concerned is Messrs. Haji Md Ismail Saheb Tannery. It is situated in Ellamman Koil st. Tiruvottiyar, Madras-19. The registered office is also in the same place. The principal employer in Haji Md. Ismail Sahib and his office is situated in No. 17, Sydenham Road, Periamet, Madras-3.
(7) In C. C. No. 2397 of 1958, the factory concerned is Messrs. Ameen Rahman Tannery. It is situated in Ellamman Koil Str., Madras-19. The registered office is also in the same place. The principal employer is Sri Haji Md. Ismail Saheb and the manager is Sri Abdul Sukkur and their office is situated in No. 17 Sydenham Road, Periamet, Madras 3.
(8) In C. C. No. 3545 of 1958, the factory concerned is Messrs. Revathi Studios, situated in Arcot Road, Kodambakkam. The registered office of the factory was also in the same place. The studio was sold on 21-11-1957 and Sri V. S. Raghavan and Sri V. Rangachari, the principal employer and manager respectively of the Revathi Studios now carry on their correspondence from 110-F Mount Road, Madras.
(9) In C. C. No. 3546 of 1958, the factory concerned is Messrs. Royal Studios. It is situated at Arcot Road, in Vedapalani, Madras. The registered office is also in the same place. The principal employer is Sri M. H. M. Munas and his address is also the same.
(10) In C. C. No. 3547 of 1958, the factory concerned in Messers. Amco Studios, Lessees of film centre (P) Ltd., and Vijaya Cine Laboratories (P) Ltd. It is situated at Vadapalani. The factory's registered office also is situated in the same place. The principal employer is Mr. Noor Kazi, and his office address is also the same.
(11) In C. C. No. 3548 of 1958, the factory concerned is Messrs. Prakash studios. It is situated in Vadapalani, Madras. The factory's registered office is also in the same place. The principal employer are Sri K. S. Prakash and Sri K. Venkatarama Aiyar and their office address is also the same.
(12) The accused persons raised a preliminary objection that the Chief Presidency Magistrate's court had no jurisdiction and the places where the factories are situated, are within the jurisdiction of the Sub Divisional Magistrate, Poonamallee. Therefore, applications were filed by the Employees' State insurance corporation, No. 2 Sri Desikachari Road, Mylapore, Madras-4 for giving either a direction t the Chief Presidency Magistrate to try the various calendar cases pending before him or to transfer them to the file of the Sub Divisional Magistrate of Poonamallee, within whose jurisdiction the factories and establishments are situated as contended by the accused themselves.
(13) The points that arose for consideration before one of us, Somasundaram, J., were (1) whether the Chief Presidency Magistrate had territorial jurisdiction to try the cases and (2) if not, whether the cases could be transferred from the file of the Chief Presidency Magistrate's court to the file of the court having jurisdiction to try the cases.
(14) On the first point Somasundaram J. took the view, on the materials placed before him, then, that the Chief Magistrate will have no jurisdiction to try the cases and that the High Court would have no power to invest that court with jurisdiction to try the cases.
(15) Regarding the second point, viz., whether the High Court has power to transfer the cases from the file of the Chief Presidency Magistrate to the file of the court having jurisdiction to try the cases, i.e., the Sub Divisional Magistrate's court of Poonamallee, the accused contended that such transfer could not be effected and relied on the decisions in ILR 36 Mad 387, in 17 Mad LW 69: (AIR 1923 Mad 326) and 1939 Mad WN 517, and also on certain observations in 1935 Mad WN 649. On these materials then placed before him, our learned brother, as then advised, observed that these decisions appeared to support the stand taken by the defence but considered however that the decision in ILR 36 Mad 387, which was the basis of all subsequent decisions required reconsideration. In view of conflicting rulings our learned brother felt that the correct scope of Ss. 346(1) and 526(1)(i) should be delimited for guidance of the sub-ordinate courts and directed that the papers be placed before my Lord the Chief Justice for the matter being heard by a Full Bench for an authoritative pronouncement. This Full Bench has thereupon been constituted by the learned Chief Justice.
(16) Before dealing with the point of law raised, viz., the correct scope of Ss. 346(1) and 526(1) and concerning which there are a series of conflicting rulings like ILR 36 Mad 387, requiring reconsideration, we have to point out that the learned Advocate General who appeared at our request and whose lucid and able exposition was of great assistance to us, was able to convince us that in this case the Chief Presidency Magistrate as a matter of fact has got territorial jurisdiction. The general common law rule is that where no place of payment is specified, either expressly or by implication, the debtor must seek the creditor. Mahaluxmi bank Ltd. v. Chotanagpur industrial and Commercial Association, , Gopiram v. Shankarrao, AIR 1950 Madh B. 72; Ramchandra Tejmal v. Mohanlal, AIR 1930 Nag 207; Gokul Das v. Nathu, AIR 1926 All 477; Drexel v. Drexel 1916-1 Ch 251; Mehraj v. Johnson, AIR 1915 Nag 65; Yar Mahomed Khan v. Amiruddin, 20 Ind Cas 683; Raman Chettiar v. Gopalachari, ILR 31 Mad 223; Motilal v. Surajmal, ILR 30 Bom 167, Puttappa v. Virabhadrappa, 7 Bom, LR 993, Ball and Co. v. Antwerp, London and Brazil Line, 1891-1 Q. B. 103.
(17) It is laid down by Littleton that the obligor of a bond, conditioned for the payment of money at a particular day, is bound to seek the obligee, if he be in England and at the set day to tender him the money. Otherwise he shall forfeit the bond: Cranley v. Hillary, (1813) 105 E. R. 327. The common law rule is a reasonable rule and it is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by the debtor going to his creditor and repaying the amount, and the common law rule imposes this obligation only when there is no express contract to the contrary: Bharumal v. Sakhawatmal, . The principle is that when a man agrees to do any
particular thing, he must do all that is necessary. If it be to pay money to A, on a particular day, he must seek A; Soward v. Palmer, (1818) 129 E. R. 390. Section 49 of the Indian Contract Act does not preclude the application of the rule of English Common law that the debtor must seek out his creditor and pay his debt where the creditor happens to reside, unless there is an arrangement to the contrary: Ramalinga Iyer v. Jayalakshmi, AIR 1941 Mad 695, Annamalai Chettyar v. Daw Hnin U, AIR 1936 Rang 251, Muhamad Esuff Rowther v. M. Hateem and Co., AIR 1934 Mad. 581.
(18) Bearing this principle in mind let us examine the facts of this case. Section 39 of the Employees State Insurance Act, 1948, lays down:
"The contribution payable under this Act in respect of an employee shall.......... be paid to the Corporation."
That payment to the Corporation has to be made at its office in Desikachari Road, Mylapore, Madras-4. Similarly, the returns to be submitted under S. 44 of the said Act have to be submitted to the Corporation or to such officer of the Corporation as it may direct. The registers will naturally be maintained by the various factories and establishments in their offices where they are located.
In this connection, it is contended that by a circular the Corporation has enables payments to be made in mofussil centres. But this does not relieve the factories an d establishments from the obligation under the common law rule that the debtor must seek the creditor. In 1916-1-Ch. 251, it was held that where a payment was bound to be made in England, on the principle of debtor seeking the creditor, the fact that for purposes of convenience the payments were being made in America, would not relive the debtor from the common law obligation and the consequences arising from default thereof.
(19) Therefore, we hold first of all, that the Chief Presidency Magistrate had territorial jurisdiction to enquire into the matter and the fact that different parts of the offence were committed in a different jurisdiction would make no difference. Where it consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas: See S. 182 Cri.P.C.
(20) Next we shall examine the question whether even assuming that the Chief Presidency Magistrate had no territorial jurisdiction, this court can confer jurisdiction on the Chief Presidency Magistrate to try those cases according to law.
(21) The jurisdiction of a magistrate or a civil judge to enquire into and dispose of criminal cases and suits depends upon two elements. First of all the magistrate or the civil Judge must be competent to entertain and dispose of the cases or suits. In the Criminal Procedure Code, that competency is set out in Sch. II. In the Civil Procedure Code the competency is determined by pecuniary jurisdiction or by special conferment of powers under statutes or by being designated personally to try and dispose of such suits or proceedings. This competency is different from territorial jurisdiction. Both the Criminal Procedure Code and the Civil Procedure Code contain provisions regarding the venue of the Criminal trial (Ss. 178 to 184, both inclusive of the Criminal Procedure Code and Ss. 15 to 25 of the Civil Procedure Code). Normally the competency and venue must concur. Criminal cases and suits may however occur where they do not concur. So provisions are made both in the Civil Procedure Code and the Criminal Procedure Code for meeting such a contingency.
(22) There is one vital difference, however, between the Civil Procedure Code ad the Criminal Procedure Code. Civil suits are between individuals and in criminal cases it is the State which is vitally interested and except as regards private complaints the State is the prosecutor. In fact even in regard to private complaints the State plays a very important part. Under the scheme of the Criminal Procedure Code, which followed in this respect the French Criminal Procedure, two sets of parallel procedures are prescribed for the institution and trial of cases, viz., on complaint to the police and the complainant himself instituting the complaint in the appropriate court.
Under the Civil Procedure Code, if the District Munsif, for instance, finds that he has no pecuniary or territorial jurisdiction to entertain the suit, he will direct the return of the plaint to the party for presentation to the proper court. Under the Criminal Procedure Code before a magistrate takes cognizance of a case, he is empowered under S. 201 Crl. P. C. when the complaint is made in writing and the magistrate finds himself not competent, to return the complaint for presentation to proper court. But where cognizance is taken by a magistrate as he is bound to take on a complaint preferred by a department of the State without recording a sworn statement under S. 200 Cri.P.C. if he finds that he is not competent to try the case or has no territorial jurisdiction, he cannot direct the return of the complaint for presentation to the proper court. A Magistrate after taking cognisance must dispose of the complaint in any one of the ways prescribed under the Criminal Procedure Code, viz., dismissal (Sec. 203); reference to superior magistrates (Ss. 346, 349); discharge (253); Committal (347); conviction, acquittal, stoppage of proceedings (S. 249).
Section 346(1) Crl. P. C. prescribes the procedure of a State Magistrate in cases which cannot be disposed of by him by reason of incompetency or want of territorial jurisdiction. It lays down that if in the course of the enquiry or a trial before a magistrate in any district outside the presidency-towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other magistrate in such district, he shall stay the proceedings and submit the case with a brief report explaining its nature, to any magistrate to whom he is subordinate, or to such other magistrate, having jurisdiction, as the District Magistrate directs. A direct authority on point is Ramgopal v. Dharamapal, 1957 M. P. L. J. (Notes) 177.
(23) The point which arises for consideration from the wording of S. 346(1) is whether this procedure covers only cases of want of competence or want of territorial jurisdiction (confined only within the district) or both. In District Magistrate Cuddapah v. Abdul Kareem, AIR 1943 Mad 526: 1943 Mad WN 335: 44 Cri LJ 776, it was held by Horwill, J., that where the objection is that the Collector should have filed the complaint himself and that he had no power to delegate that right to the revenue divisional officer and that the complaint should have been made to the Sub Magistrate having jurisdiction at the place where the Collector received the letter are correct, the magistrate should return the complaint for presentation to the magistrate having jurisdiction, and not forward the papers to his immediate superior under section 346(1). We do not find any warrant for the limitation placed by Horwill J.
In this opinion we are fortified by a recent Bench decision of the Calcutta High Court in Amarendra Nath v. Raghunath,
wherein it was held that there is nothing in S. 346 to show that that section has no application to cases of want of territorial or local jurisdiction, that on the other hand, the use of the words "some other magistrate in such district" and "such other magistrate having jurisdiction" in S. 346(1) may reasonably be construed to indicate that cases of want of local or territorial jurisdiction are also included within the scope of S. 346, that this view is supported by the decision in In re Munisami, 2 Weir 323, and that it is also well to remember in this connection that absence of local or territorial jurisdiction is under the Code a mere irregularity, readily curable, and is of much lesser gravity than want of other jurisdiction: Vide Ss. 526(1)(i), 530 and 531, Crl. P.C.
In fact, the object of these sections is that criminals should not be allowed to escape by reason of technical irregularities. The policy of the Code as shown by S. 531 is to uphold in most cases orders passed by a criminal court which was lacking in local jurisdiction or which has committed illegalities or irregularities unless failure of justice has been occasioned or is likely to be occasioned through such want of jurisdiction or such illegalities or irregularities: ILR 42 Mad 791: (AIR 1920 Mad 824; 37 Mad LJ 60: (AIR 1920 Mad 824); Mt. Bhagwatia v Emperor, ILR 3 Pat 417: (AIR 1925 Pat 187); ILR 37 Mad 387; Emperor v. Dorasami Mudali, ILR 30 Mad 94; Rayan Hutte v. Emperor, ILR 26 Mad 640. S. 531 cures irregular proceedings wrongly held in a wrong local area unless it appears that the error as to territorial jurisdiction has in fact occasioned a failure of justice. Therefore, there is no reason to place the very narrow construction as Horwill J. has done, in his short judgment in which there is no discussion and which also shows that the earlier decisions of this court were not brought to his notice. See also Sowbagiammal v. Rapheel, 1954-2 Mad LJ 459 to the same effect. Agreeing with the Bench decision of the Calcutta High Court in , we hold that S. 346(1) is wide enough to take in
cases of want of territorial or local jurisdiction.
(24) The High Court under S. 526(1) may order that any offence be enquired into or tried by any court not empowered under Ss. 177 to 184 of the Cr.P.C. both inclusive but, in other respects competent and inquire into or try such cases. Sections 177 to 184 relate to the place of enquiry or trial. Section 526(1) empowers the High Court to confer jurisdiction upon a court not having local jurisdiction but otherwise competent to inquire into and try such offences.
(25) The history of S. 526 is significant. Section 35 of the Act XXV of 1861 (First Criminal Procedure Code) empowered the Sudder court to order transfer of any criminal case of appeal, or inquiry from one criminal court or district to another, if it would promote the ends of justice or tend to the convenience of the parties or witnesses. Section 64 of the 1872 Code gave similar powers to the High Court in almost similar terms. Section 526 of the 1888 Code elaborated this power in terms very similar to those contained in sub-sections (1) to (7) of this section of the present Code.
(26) To sum up, the High Court when it is made to appear to it that the circumstances contemplated in cls. (a) to (c) of S. 526(1) exist, may clothe with jurisdiction any court not empowered under Ss. 177 to 184 to inquire into any offences and try the same provided that in other respects that court is competent to inquire into or try such offences. This is precisely what is asked for in the instant case. On the footing that the Chief Presidency Magistrate's court has no territorial jurisdiction to enquire into these offences, the learned Public Prosecutor has been instructed to seek our order to clothe the Chief Presidency Magistrate with jurisdiction to enquire into and try these cases. The point is concluded by authority.
In ILR 42 Mad 791: (AIR 1920 Mad 834), a Bench of this court held that even assuming that the High Court in its original criminal jurisdiction has no power in the usual course to try the case, the appellate side of the High Court can exercise the power given to the High Court by Section 526(1) for reasons (d) and (e) contained in S. 526(1) pass an order that the offences committed outside the jurisdiction of Madras be also tried in the High Court criminal sessions along with other offences which were committed in Madras. Spencer J. who sat with Sadasiva Aiyar J. who delivered the leading judgment had observed at p. 795 (of ILR Mad): (at p. 825 of AIR), that under S. 526, the High Court is empowered to make such a direction. Similarly, a Bench of the Bombay High Court in Queen-Empress v. Atmaram Govind, 2 Bom LR 394, has held that where a sessions Judge on a case being committed to him, reported the case to the High Court under S. 526 as he was of opinion that he could not try the case without an order of the High Court, since he found judicially that all the acts constituting the alleged offences with which the accused was charged were committed, if at all, in Bombay, the Bombay High Court can clothe with jurisdiction the sessions judge of Ratnagiri to try the case.
(27) Thus, where an offence is being inquired into or tried by a Court contrary to the provisions of Ss. 177 to 184 Cri.P.C., the error can be rectified by the High Court by an order formally made under the provisions of S. 526(1) that the case be tried by such a court. Emperor v. Govardhan Ridkaran, AIR 1928 Bom 140: 29 Cri LJ 533; Mubarak Ali v. Abdul Haq, AIR 1925 Oudh 490: 26 Cri LJ 577) Emperor v. SheoDayal, 23 Oudh Cas 87: (AIR 1919 Oudh 69(1)) dissented) and Wahid Bux v. Emperor, AIR 1929 Sind 250: 30 Cri. LJ 1121 (ILR 18 All 350; ILR 8 Bom 312 and 2 Bom LR 394, relied on: ILR 36 Mad 387; ILR 9 all 191 (PC); ILR 42 Mad 791: (AIR 1920 Mad 824); 23 Oudh Cas 87: (AIR 1919 Oudh 69(1)); AIR 1925 Oudh 490 and AIR 1925 Pat 187, referred) and Bai Nirmalabai Revadas v Revadas Bhikhabhai, .
(28) In the light of his analysis the decisions in ILR 36 Mad 387 etc., in so far as they differ from the scope of S. 346(1) and S. 526(1)(i) Cri.P.C. as interpreted above cannot be considered to lay down sound law.
(29) This reference to the Full Bench is answered accordingly.
(30) In regard to the instant cases we have already directed that the trials should be proceeded with by the Chief Presidency Magistrate and we confirm that direction.
Basheer Ahmed Sayeed, J.
(31) I have had the benefits of reading the judgment just now pronounced by my learned brother, Ramaswami J. While I agree with him in the conclusions arrived at. I should like to add a few words of my own.
(32) The facts relating to this reference to the Full Bench have been set out in detail by my learned brother and it is not necessary for me to traverse the same again. Though at an earlier stage a doubt was raised by the learned counsel for the accused as to whether the Presidency Magistrate's court had local or territorial jurisdiction to try these cases the learned Advocate General has, in the course of the hearing of this reference, made it clear that the Chief Presidency Magistrate's court has jurisdiction to try the offences in respect of which the accused stand charged before him. The learned counsel for the accused contended that since the accused persons own factories which are situated outside the territorial limits of the city of Madras and their head offices are also situated outside the city limits, the offences must be deemed to have been committed only outside the territorial jurisdiction of the Chief presidency Magistrate so as to attract the operation of only section 201 Cri.P.C. This argument of the learned counsel for the accused was obviously due to the fact that they ignored that the Employees' State Insurance Corporation itself with its office was situated in the city o Madras and that under the statute and the rules framed under Employees' State Insurance Act, XXXIV of 1948, the contribution as well as the returns had to be paid and submitted respectively to the corporation wherever its office was situated. The learned counsel for the accused, however, wanted to take advantage of the fact that by certain circular issued under the Employees' State Insurance Act a facility was afforded to the owners of factories to pay their contribution to the treasuries situated outside the city limits and thereupon contended that the jurisdiction of the Chief Presidency Magistrate was ousted thereby. But the language of Ss. 39(1), 40 and 44 reasonably understood, points only to the conclusion that the contributor had to make the payment of his contribution to the corporation wherever its office was situated; even so, the returns have to be submitted to the office of the Corporation where it is situated. The place of payment as also the submission of the returns, notwithstanding the fact that a facility was extended to the contributors to make payments to the nearest treasury prescribed, is only to the Corporation at its office, wherever its office is situated.
The treasuries are merely the agents of the Corporation for the mere purpose of receiving the payment and no more. The series of decisions cited before us by the learned Advocate General and referred to by my learned brother Ramaswami J. in his judgment, make it quite clear that the payment of the contribution due to the Corporation and also the submission of the returns, has to be done only at the place where the corporation is situated, and the mere fact that some facility is afforded to the contributors for the sake of convenience, to make payments outside the city limits would not by any means displace the legal obligation on the part of the contributors to pay their contributions and submit their returns to the Corporation at the place where the Corporation is having its office. The circular, therefore, relied on by the accused, dated 6-2-1952, cannot be deemed to be a contract to the contrary between the parties and does not, in any way, absolve the contributors from the ordinary legal responsibility of a debtor being bound to seek the creditor and make the payment and discharge his obligations. Therefore, if a breach is committed, it is only a breach of the obligation to pay the corporation at its office and not otherwise.
(33) The next question that was argued by the learned counsel for the accused was that the High Court had no power under the Criminal Procedure Code to order the cases in question to be tried by the Chief Presidency Magistrate or to direct a transfer from the court of the Chief Presidency Magistrate to another court, if the Chief Presidency Magistrate's court was not already vested with the territorial jurisdiction to try such cases. This argument proceeded on the assumption that the Chief Presidency Magistrate's court had no jurisdiction to try the offences because the offences were committed outside its local jurisdiction and when once there was no local jurisdiction for the Chief Presidency Magistrate, then the complaints filed before it become ineffective, and the only alternative for the Chief Presidency Magistrate was to act under S. 201, Cri.P.C., S. 346, Cri.P.C., being of no avail to a court situated within the presidency town.
This argument also ignored the distinction that exists between the local or territorial jurisdiction of a criminal court as contrasted with the competence of a criminal court to try offences. The analogy of S. 24 C.P.C. applicable to transfer of the pending civil cases was largely pressed into service in support of the contention of the learned counsel for the accused that unless circumstances similar to those contemplated under S. 24 C.P.C. were available, the High Court could not order transfer or direct the court which has no local jurisdiction, to try offences of the type in question. But the very patent distinction which exists between the powers exercisable under S. 24 C.P.C. and the powers exercisable under Section 526(1)(a)(i) Cri.P.C. seems to have been lost sight of by the learned counsel for the accused.
A reading of S. 526(1)(e)(i) Cri.P.C. would disclose that the owners of the High Court under this section are far wider than those contemplated under S. 24 C.P.C. Lack of local or territorial jurisdiction does not appear to be a bar against the High Court directing a criminal court which is otherwise competent to try offences even though the offences were not committed within its territorial jurisdiction provided all or any of the conditions specified in S. 526(1), (a), (b), (c), (d) and (e) are satisfied. Section 526(1)(e)(i) specifically vests the High Court with powers to order that any offence be enquired into or tried by any court not empowered under Ss. 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence, whenever it is made to appear to the High Court that such order is expedient for the ends of justice or is required by any provision of the Criminal Procedure Code or when it is made to appear that an order under this section will tend to the general convenience of the parties or witnesses.
(34) The series of decisions cited before us by the learned Advocate General on this aspect of the case, commencing from 2 Bom LR 394 and ending with , viewed in their proper light, make it
clear that the powers of the High Court, in the matter of transfer of criminal cases from one court to another or to pass orders directing that an offence be enquired into by any court not empowered under Ss. 177 to 184 Cri.P.C. are not circumscribed by the requirements contemplated in S. 24 C.P.C. but that they are of much wider scope. The legislature seems to have deliberately enacted this difference with a view to secure efficient administration of criminal justice.
(35) The learned counsel for the accused, however, relied on certain decisions of single Judges of this court wherein it has been held that resort to S. 201 Cri.P.C. would be the proper remedy of a magistrate who has no territorial jurisdiction to try offences for which a charge has been laid before him. In particular, reference was made by the learned counsel for the accused to the decisions in 1954-2 Mad LJ 459 and AIR 1943 Mad 526. It is but fair to point out that in these decisions the powers of the High Court under S. 526(1)(e)(i) did not come up for consideration and the decisions were merely confined to the proper section that was to be resorted to by the magistrate, viz., whether it was S. 201 or S. 346(1), Cri.P.C. As between the two sections, Ss. 346 and 201, Cri.P.C., decisions were that the proper remedy was to take action under S. 201 Cri.P.C. These decisions, therefore, could not be authority for the proposition now contended for on behalf of the accused that the only course open in the present cases to the magistrate or to the High Court was to take action or direct action being taken under S. 201 Cri.P.C. disregarding the very wide powers vested in the High Court under S. 526(1)(e)(i) Cri.P.C. In those decisions, the powers of the High Court under S. 526(1)(e)(i) were not invoked and the relief sought was confined to a very narrow issue. Questions such as the venue of the trial court and its competency to try offences as distinct from the power of the High Court to clothe, with territorial jurisdiction, any court, even, if it did not possess territorial or local jurisdiction, were never adverted to in those decisions relied upon by the learned counsel for the accused. The decision in ILR 42 Mad 791: (AIR 1920 Mad 824), is still good law, being in conformity with the policy underlying S. 526(1)(e)(i) Criminal Procedure Code.
(36) In the result, I agree that the order that we have already passed in the matter should be confirmed.
(37) SOMASUNDARAM, J.: I agree with my learned brothers, Ramaswami and Basheer Ahmed Sayeed JJ.
(38) Order accordingly.