Gauhati High Court
Crl.Pet./599/2024 on 20 January, 2025
GAHC010100642024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.PET./599/2024
Pabitra Kumar Hira,
S/O Late Maneswar Hira,
R/O Ward No. 10, Bhebarghat,
P.O. and P.S. Mangaldai,
District-Darrang, Assam
.....Petitioner
-Versus-
1. The State of Assam,
Represented by PP, Assam.
2. Shri Anil Todi @ Anil Kumar Todi,
S/O Sri Niranjan Lal Todi,
R/O No. 2 Queens Park,
Kolkata-799919 West Bengal
......Respondents
For Petitioner : Ms. Padmini Barua, Advocate
For Respondents : Mr. K. Baishaya, Additional Public Prosecutor
Mr. D. Das, Senior Advocate
Mr. D. Talukdar, Advocate
Date of Hearing : 10.01.2025
Date of Judgment : 20.01.2025
CRL.PET.599/2024 Page 1
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(Mridul Kumar Kalita, J.)
1. Heard Ms. P. Barua, learned counsel for the petitioner. Also heard
Mr. K. Baishya, learned Additional Public Prosecutor representing the
State of Assam (respondent No. 1) as well as Mr. D. Das, learned
Senior counsel assisted by Mr. D. Talukdar, learned counsel for
respondent No. 2.
2. This Criminal Petition has been registered on filing of an application,
under Section 482 of the Code of Criminal Procedure, 1973, by the
petitioner, namely, Shri Pabitra Kumar Hira, impugning the judgment
and order dated 29.04.2024, passed by the learned Session Judge,
Darrang, Mangaldai, in Criminal Revision Case No. 1/2022, whereby,
the said criminal revision was allowed and the order dated
12.11.2021 passed by the learned Chief Judicial Magistrate, Darrang,
Mangaldai, in CR Case No. 243/2014 was set aside. By the aforesaid
order, the learned Chief Judicial Magistrate Darrang, Mangaldai had
framed charges against the respondent No.2 under Section
420/406/385 of the Indian Penal Code.
3. The facts relevant for consideration of the instant criminal petition, in
brief, are as follows:
i. The complainant (present petitioner) is the proprietor of M/s D
& N Enterprise, Mangaldai, Assam and of M/s Hira Feed Stores,
Mangaldai, and he is doing the business of power tillers andCRL.PET.599/2024 Page 2
tractors. For several years, he had procured Khajana Power
tillers from M/s Khajana Agricultural Equipment’s Limited,
Kolkata for supplying the same to the Government of Assam.
ii. The petitioner herein had filed a complaint case in the Court of
the learned Chief Judicial Magistrate, Darrang at Mangaldai,
against two accused persons, namely, Shri Anil Todi @ Anil
Kumar Todi (Respondent No. 2 herein) and Shri P.K. Sarkar
under Section 383/385/403/406/420/120B of the Indian Penal
Code. The said complaint case was registered as CR Case No.
243/2014.
iii. In the aforementioned complaint, filed in the Court of learned
Chief Judicial Magistrate, Darrang, Mangaldai, the present
petitioner has alleged that accused No. 1 therein, namely, Shri
Anil Todi, (present respondent No. 2), who is the Managing
Director of M/s Khajana Agricultural Equipment’s Limited, as
well as M/s Shiv Durga Finance and Investment Private Limited,
which had its office at Kolkata and also at Guwahati, as well as
the accused No.2, therein, namely, Mr. P.K. Sarkar, who is
employee of the accused No.1, have failed to deliver the 40
numbers of power tillers to the complainant, in spite of the
payment of ₹ 25 lakhs to the accused persons for the same.
iv. It is stated in the complaint petition that on 17.03.2005, the
complainant (present petitioner), visited the common office of
M/s Khazana Agricultural Equipment Limited, as well as Shiv
Durga Finance and Investment Private Limited at Strand Road,CRL.PET.599/2024 Page 3
Kolkata, to purchase 40 numbers of Khazana S-1100 power
tillers. On that day. the accused persons had instructed the
complainant (present petitioner), to make an advance payment
of Rs. 25 lakhs for the purchase of a forced power tillers by
demand draft in favour of M/s Shiv Durga Finance and
Investment Private Limited as the delivery of the said power
tillers was to be done by the Guwahati office of Shivdurga
Finance and Investment, Private Limited.
v. Accordingly, the complainant (present petitioner), handed over
a demand draft for Rs. 25 lakhs to the accused No.1
(Respondent No. 2) at his Kolkata office on 17.03.2005 and
also wrote a letter bearing No. D&NE/MLD/PT/2005-2006/39
then and there and requested the accused to dispatch the said
power tiller within 20.03.2005. The accused No.1 (Respondent
No. 2) acknowledged the receipt of the said demand draft and
the amount of Rs. 25 lakhs was credited to the account of M/s
Shiv Durga Finance and Investment Private Limited.
vi. However, thereafter, the accused persons failed to deliver the
40 numbers of power tiller, as promised to the complainant
(petitioner), in spite of repeated requests.
vii. Apart from the aforesaid allegation, the petitioner has also
accused the accused No. 1 (Respondent No. 2) of blackmailing
him by demanding ₹5 lakh and threatening to disclose
confidential information that would harm the petitioner.
CRL.PET.599/2024 Page 4
viii. On receipt of the said complaint, the learned Chief Judicial
Magistrate, on 22.04.2014, examined the complainant under
Section 200 of Code of Criminal Procedure, 1973 and
thereafter, the case was fixed for further inquiry. During further
inquiry, two witnesses were recorded, and after considering the
complaint petition, the initial statement of the complainant, as
well as other materials on record including the statement of
witnesses, the learned Chief Judicial Magistrate, Darrang found
a prima facie case against the accused persons under Section
406/385/420/34 of the Indian Penal Code and accordingly
issued processes against the accused persons.
ix. Both the accused persons (Anil Kumar Todi and Mr. P. K.
Sarkar), appeared before the Trial Court. Though, they took the
plea of lack of territorial jurisdiction as well as some other
objections before the Trial Court, however, after considering
the materials available on record along with the evidence of the
prosecution witnesses which were recorded before framing of
charge under Section 244 of the Code of Criminal Procedure,
1973, by order dated 12.11.2021, the learned Chief Judicial
Magistrate found prima facie materials under Section
420/406/385 of the Indian Penal Code against the accused
No.1, namely Anil Kumar Todi (Respondent No.2) and
accordingly, framed charges against him. However, no such
prima facie material was found against the another accused,
namely, P. K. Sarkar and he was discharged by the said order.
CRL.PET.599/2024 Page 5
x. Being aggrieved by the order framing charges against him by
the learned Chief Judicial Magistrate, Darrang, Mangaldai, the
respondent No. 2 (Accused No. 1) preferred a revision petition
under Section 397 of the Code of Criminal Procedure, 1973,
before the learned Sessions Judge, Darrang, Mangaldai. The
case was registered as Criminal Revision No. 1/2022
xi. The aforesaid criminal revision petition was disposed of by the
learned Sessions Judge, Darrang, Mangaldai, through the
impugned judgment, which set aside the order framing charges
against the respondent No. 2 (accused No. 1). The petitioner
has challenged the said judgment in the instant criminal
petition.
4. Ms. P. Baruah, the learned counsel for the petitioner, has submitted
that the impugned order dated 29.04.2024 passed by learned Session
Judge, Darrang, Mangaldai, whereby it had set aside the order of
learned Chief Judicial Magistrate by which charges were framed
against the respondent No.2 under Section 420/406/385 of the Indian
Penal Code is bad in law and is liable to be set aside.
5. She submits that though, it is clear that the petitioner had paid an
amount of Rs. 25 lakhs to the respondent No.2 for delivery of power
tillers at Mangaldai and though, the said amount has been credited to
the account of the company of the respondent No. 2, however, in
spite of that, the petitioner has intentionally not delivered the power
tillers to the petitioner at Mangaldai.
CRL.PET.599/2024 Page 6
6. The learned counsel for the petitioner has submitted that though the
learned Sessions Judge has, in the impugned judgment, come to the
finding that the Court of learned Chief Judicial Magistrate, Darrang,
does not have territorial jurisdiction, by holding that no offence has
been committed within the territorial jurisdiction of Darrang district,
however, the materials on record, including the letter bearing No.
D&NE/MLD/PT/2005-2006/39, which was given to the Accused No. 1
(Respondent No. 2), on 17/03/2005, by the petitioner, clearly shows
that the Power Tillers were to be delivered at Mangaldai by the
accused.
7. The learned counsel for the petitioner has also submitted that the
learned Sessions Judge, Darrang, erred in holding that no offence was
committed within the territorial jurisdiction of the courts in Darrang
district. She argues that, in this case, the non-delivery of the power
tillers to the petitioner at Mangaldai, Darrang, constitutes an essential
ingredient of the alleged offences of cheating and criminal breach of
trust. She further submits that the act of non-delivery and its
consequences occurred within the local jurisdiction of the courts at
Mangaldai, therefore, the Court of the learned Chief Judicial
Magistrate, Darrang, at Mangaldai, has the territorial jurisdiction to try
the alleged offences under Sections 420 and 406 of the Indian Penal
Code, especially in view of the provisions of Section 179 of the Code
of Criminal Procedure, 1973.
8. The learned counsel for the petitioner has submitted that even if, for
the argument sake, it is assumed that the Court of learned Chief
CRL.PET.599/2024 Page 7
Judicial Magistrate, Darrang, Mangaldai lacks territorial jurisdiction to
try the complaint case filed by the present petitioner, however, the
order of framing of charges dated 17.11.2021 passed by the learned
Chief Judicial Magistrate would be saved by the provisions of Section
462 of the Code of Criminal Procedure, 1973, in as much as, under
the said provision, unless it has occasioned a failure of justice, lack of
territorial jurisdiction may not be the ground for setting aside the
order passed by the said court.
9. The learned counsel for the petitioner has submitted that though the
lack of jurisdiction to try an offence cannot be cured by Section 462 of
the Code of Criminal Procedure, 1973, however, the trial of an
offender by a Court which does not have territorial jurisdiction can be
saved under Section 462 of the Code of Criminal Procedure, 1973. In
support of her submission, the learned counsel for the petitioner has
cited a ruling of the Apex Court in the case of “Kaushik Chatterjee
Vs. State of Haryana and others” reported in (2020) 10 SCC 92.
10. The learned counsel for the petitioner has also submitted that the
respondent No.2 had approached the Supreme Court of India for
transferring of the complaint case from the Court of learned Chief
Judicial Magistrate, Darang to the appropriate Court at Kolkata on the
ground that the Criminal Court at Mangaldai did not have the
territorial jurisdiction to entertain the matter. However, the said case
was dismissed on withdrawal by the Apex Court and accordingly in
paragraph No. 10 of the instant criminal petition, though the
petitioner took the plea of the constructive res judicata in raising the
CRL.PET.599/2024 Page 8
ground of territorial jurisdiction again by the respondent No. 2 before
any court, however, the learned counsel for the petitioner has
submitted that she is no longer pressing the said plea in this case.
11. On the other hand, Mr. D. Das, learned Senior Counsel appearing for
respondent No.2 has submitted that though, the petitioner has stated
in his complaint petition that an amount of Rs. 25 lakhs were paid to
M/s Shivdurga Finance Limited by a demand draft on 17.03.2005.
However, there is nothing on record to show that there was any
agreement to deliver the 40 numbers of power tillers to the petitioner
at Mangaldai. He submits that the evidence of the petitioner which
was recorded under Section 244 of the Code of Criminal Procedure,
1973 before framing of charges clearly shows that the 40 numbers of
power tillers were to be sent by the respondent No. 2 to the Guwahati
Office of Shivdurga Finance and Investment Private Limited. He
submits that there is nothing to show that there was any agreement
to deliver the same at Mangaldai.
12. The learned Senior Counsel for the respondent No. 2 has also
submitted that the letter bearing No. D&NE/MLD/PT/2005-2006/39
has never been exhibited by the witnesses for the complainant before
the Trial Court and the said letter was never produced before the Trial
Court. Therefore, what were the contents of the said letter were not
known to anyone. Hence, he submits that same cannot be used to
invoke the jurisdiction of the Courts at Mangaldai in this case.
13. The learned Senior Counsel for the respondent No. 2 has also
submitted that though the respondent No. 2 had withdrawn the
CRL.PET.599/2024 Page 9
transfer application filed by him before the Supreme Court wherein he
had prayed for transfer of the complaint case from the Court of
learned Chief Judicial Magistrate, Mangaldai to the appropriate Court
having jurisdiction, at Kolkata. However, in the present case, he
submits that the order for dismissal on withdrawal was passed by the
Supreme Court of India while denying special leave in the SLP. He
submits that as the special leave was not granted by the Supreme
Court, as the respondent No. 2 prayed for withdrawal of the SLP,
hence nothing was decided on merit and the Apex Court did not
exercise its appellate jurisdiction and therefore, the doctrine of merger
would not be applicable in this case and the order passed by the Apex
Court while dismissing the SLP on withdrawal would not operate as a
constructive Res Judicata preventing the respondent No. 2 from
taking the plea of lack of territorial jurisdiction in any future
proceeding. In support of his submission, the learned Senior Counsel
for the respondent No. 2 has cited a ruling of the Apex Court in the
case “Kunhayammed and Others Vs. State of Kerala and
Another” reported in (2006) SCC 159.
14. The learned Senior Counsel for the respondent No. 2 has also
submitted that in the instant case, the order of framing of charges
against the respondent No.2 by the learned Chief Judicial Magistrate,
Mangaldai would not be saved under Section 462 of the Code of
Criminal Procedure, 1973 as the proceeding which is void under
Section 461 cannot be saved under Section 462 of the Code of
Criminal Procedure, 1973. The learned Senior Counsel for the
CRL.PET.599/2024 Page 10
respondent No. 2 has submitted that under Section 461(l), if any
Magistrate not being empowered in this behalf, tries an offender, such
a proceeding shall be void under Section 461 of the Code of Criminal
Procedure, 1973 and a case which falls within the ambit of Section
461 (l) of the Code of Criminal Procedure, 1973 would not be saved
under the provision of Section 462 of the Code of Criminal Procedure,
1973. In support of his submission, the learned Senior Counsel for the
respondent No. 2 also relies on the judgment of the Apex Court in the
case of Kaushik Chatterjee Vs. State of Haryana and Others
(supra).
15. In addition to the above, the learned Senior Counsel for the
respondent No. 2 has also submitted that though, the petitioner has
alleged in his complaint petition that an amount of Rs. 25 lakhs were
paid through demand draft to the M/s Shiv Durga Finance and
Investment Private Limited Company, however, said company has not
been made as an accused in the complaint petition case. Hence, for
that reason alone, the complaint is not maintainable. He also submits
that the petitioner has also not shown any link between the
Respondent No. 2 and M/s Shiv Durga Finance and Investment
Private Limited Company. No document has been exhibited to show
as to how the Respondent No. 2 was connected with the M/s Shiv
Durga Finance and Investment Private Limited Company and
therefore, the complaint case is not maintainable. He therefore,
submits that the impugned order passed by learned Sessions Judge
CRL.PET.599/2024 Page 11
setting aside the order of the learned Chief Judicial Magistrate,
Darrang does not warrant any interference by this Court.
16. I have considered the submissions made by learned Counsel for the
petitioner as well as learned Senior Counsel for the Respondent side. I
have also perused the materials available on record carefully. Before
considering the rival submissions made by learned Counsel for both
the sides, the relevant portion of the impugned judgement is
reproduced for the sake of convenience herein below: –
“10. I have gone through the complaint petition as
well as other materials on record. In the said
complaint petition, the complainant (Respondent
No. 2) has mentioned the places of occurrence to
be Mangaldai, Guwahati and Kolkata. However,
after going through the complaint petition, I have
come to the finding that no cause of action within
the territorial jurisdiction of Courts at Darang
district, cause of action, if any, arose amongst other
places at Kolkata and Guwahati etc. on the close
scrutiny of the evidence of the Respondent No. 2 as
complainant in the complaint petition in paragraph
No. 11 of the complaint petition would show that
the demand draft of Rs. 25 lakhs was credited to
the account of M/s. Shivdurga Finance and
Investment Private Limited. However, saidCRL.PET.599/2024 Page 12
Shivdurga Finance and Investment Private Limited
has not been made a party in the complaint
petition.
13. The complainant Respondent No. 2 has not
shown any connection of Anil Kumar Todi
(petitioner) with Shivdurga Finance and Investment
Private Limited.
14. On the other hand, the learned Counsel for the
Respondent No. 2 has defended the order dated
12.11.2021 passed by learned Shiv Durga Finance
and Investment Private Limited (sic) in CR Case No.
243/2014 submitting that the said order has been
rightly passed by framing charges under Section
420/406/385 IPC against the petitioner.
15. I have considered the submissions of learned
counsel for both the contesting side and have gone
through the impugned order dated 12.11.2021.
16. As I have come to the finding that no offence,
if any, was committed within the territorial
jurisdiction of the Courts at Darang District, the
Courts of the Chief Judicial Magistrate, Darang,
Mangaldai lacked territorial jurisdiction to pass the
impugned order dated 12.11.2021 framing charges
against the petitioner.
CRL.PET.599/2024 Page 13
17. In view of the above, I have come to the
finding that the impugned order dated 12.11.2021
suffers from incorrectness, impropriety and
illegality, and hence, same is liable to be interfered
with.
Order
18. Accordingly, the impugned order dated
12.11.2021 is set aside. The revision is allowed on
contest and disposed of.
17. Section 177 of the Code of Criminal Procedure, 1973, which deals with
the places of trial, provides as follows:
“Section 177. Ordinary place of inquiry and trial,
thus every offence shall ordinarily be inquired into
and tried by the Court within whose local
jurisdiction it was committed.”
18. Section 179 of the Code of Criminal Procedure, 1973 is quoted herein
below:
“Section 179. When an act is an offence by
reason of anything which has been done and of a
consequence which has ensued, the offence may
be inquired into or tried by a Court within whoseCRL.PET.599/2024 Page 14
local jurisdiction such thing has been done or such
consequence has ensued.”
19. On perusal of the impugned judgment, more specifically the
paragraph No. 16 thereof, it appears that the learned Session Judge,
Darrang has set aside the order dated 12.11.2021 of the learned Chief
Judicial Magistrate, Darrang framing charges against the Respondent
No. 2, mainly on the ground that the learned Session Judge came to a
finding that no offence, if any, was committed within the territorial
jurisdiction of the Courts at Darrang district and therefore, the Court
of Learned Chief Judicial Magistrate, Darrang, lacks territorial
jurisdictions.
20. Let us now, examine as to whether the learned Session Judge,
Darrang was right in setting aside the order of framing charges
against the respondent No.3 under Section 420/406/385 of the Indian
Penal Court by the Court of learned Chief Judicial Magistrate,
Mangaldai.
21. On perusal of the complaint petition of CR Case No.243/2014, a copy
of which is available in the record, it appears that the petitioner, who
was the complainant of the said CR Case, is the permanent resident of
Mangaldai in the district of Darrang, Assam. He is the proprietor of
M/s D & N Enterprise as well as M/s Hira Feed Stores, both of which
are also situated at Mangaldai. It also appears from the statement
made in the complaint petition that petitioner was asked to make an
advance payment of Rs. 25 lakhs and he handed over the demand
CRL.PET.599/2024 Page 15
draft of Rs. 25 lakhs to the respondent No. 2 at his Kolkata Office on
17.03.2005. The materials on record also shows that the petitioner
also wrote a letter bearing No. D&NE/MLD/PT/2005-2006/39 and
requested the respondent No. 2 to dispatch the power tillers within
20.03.2005. It is also stated therein that the delivery of power tiller
was to be made by the Guwahati Office of M/s Shiv Durga Finance
and Investment Private Limited. Though, there is no specific averment
made in the complaint petition to show that the delivery of power
tillers was to be made at Mangaldai, however, it does mentions about
the letter No. D&NE/MLD/PT/2005-2006/39, which is annexed with
this Criminal Petition. On perusal of the said letter, it appears that the
respondent No.2 was requested by the said letter to dispatch the 40
numbers of Khajana Power Tillers within 20.03.2005 at Mangaldai.
22. On perusal of the initial deposition of the complainant which was
recorded by the Court of learned Chief Judicial Magistrate, Mangaldai
under Section 200 of the Code of Criminal Procedure, 1973, it appears
that the complainant has categorically stated there in that after
making the advance payment of Rs. 25,00,000/- by way of demand
draft in favour of M/s Shiv Durga Finance and Investment Private
Limited, the petitioner, on 17.03.2005, also wrote a letter requesting
the respondent No.3 to dispatch 40 numbers of power tillers within
20.03.2005.
23. It also appears that the learned Session Judge, Darrang, while coming
to the finding that no cause of action arose within the territorial
jurisdiction of the Courts in Darang District, has not made any whisper
CRL.PET.599/2024 Page 16
about the said letter, though the mention about the said letter is there
not only in the complaint petition but also in the initial deposition as
well as in the evidence of PW-1 which was recorded under Section
244 of the Code of Criminal Procedure, 1973.
24. It is evident that the petitioner resides in Mangaldai, Darrang, as
indicated in the complaint petition, where the address is recorded as
being within the same district. Additionally, the petitioner’s two firms,
M/s D & N Enterprise and M/s Heera Feed Stores, are also located in
Mangaldai, Darrang. Given that the payment for the power tillers was
made with a demand draft and the respondent No. 2 was requested
to dispatch them by 20.03.2005, it is reasonable to infer that the
power tillers were intended to be sent to the petitioner’s recorded
address in Mangaldai, as no alternative address is provided in the
records
25. Hence, it is logical to infer that the power tillers were intended to be
dispatched and delivered to the petitioner’s address in Mangaldai.
Merely stating that the delivery was to be arranged through the
Guwahati office of M/s Shivdurga Finance and Investment Private
Limited does not imply that the delivery itself was to occur in
Guwahati, as the petitioner’s address is explicitly recorded as being in
Mangaldai.
26. Under such circumstances, where the accusations involve offences
under Sections 420 and 406 of the Indian Penal Code, i.e., cheating
and criminal breach of trust, the facts stated in the complaint petition
indicate that the respondent No. 2 allegedly cheated the petitioner by
CRL.PET.599/2024 Page 17
failing to deliver 40 power tillers despite receiving payment for them.
Therefore, the non-delivery of the power tillers to the specified
address constitutes an element of the alleged offences under Sections
420 and 406 of the Indian Penal Code.
27. Moreover, although the letter bearing No. D&NE/MLD/PT/2005-
2006/39 was not produced before the Trial Court or the Revisional
Court, it appears that the complainant referred to this letter in his
initial deposition under Section 200 of the Code of Criminal Procedure,
1973, as well as in the evidence before charge recorded under Section
244 of the Code. Considering that the role of the Criminal Court
during proceedings under Sections 200 and 244 of the Code of
Criminal Procedure, 1973, is not purely adversarial but also
inquisitorial, the court could have directed the production of the letter
mentioned in the complaint petition and the testimony of PW-1. The
complainant still has the opportunity to produce the letter at this
stage.
28. From the above discussion, it appears that respondent No. 2 was
obligated to dispatch the power tillers to Mangaldai, and the failure to
do so resulted in the petitioner not receiving the power tillers at his
address in Mangaldai. This constitutes an ingredient of the alleged
offences against respondent No. 2. Therefore, the offence is partly
committed in Kolkata and partly in Mangaldai, and as such, it may be
inquired into and tried by a court having jurisdiction over either of
these local areas
CRL.PET.599/2024 Page 18
29. Though, the learned Senior Counsel for the respondent No. 2 has
submitted that if any Magistrate, not being empowered by the law in
his behalf, tries the offenders then such an irregularity is an
irregularity which vitiates the proceedings and same has been
provided under Section 461 (l) of the Code of Criminal Procedure,
1973 and the said irregularity is also not saved under Section 462 of
the Code of Criminal Procedure, 1973. However, the observation
made by the Apex Court in the case of “Kaushik Chatterjee Vs.
State of Haryana” (Supra), in this regard are relevant and
therefore, quoted herein below:
“35. It was specifically held by this Court in Raj
Kumari Vijh [Raj Kumari Vijh v. Dev Raj Vijh, (1977) 2
SCC 190 : 1977 SCC (Cri) 294 : AIR 1977 SC 1101]
that the question of jurisdiction with respect to the
power of the court to try particular kinds of offences
goes to the root of the matter and that any
transgression of the same would make the entire trial
void. However, territorial jurisdiction, according to this
Court “is 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 … and the convenience of the witnesses who
have to appear before the Court”. (SCC p. 194 para 7)CRL.PET.599/2024 Page 19
36. After making such a distinction between two
different types of jurisdictional issues, this Court
concluded in that case, that where a Magistrate has
the power to try a particular offence, but the
controversy relates solely to his territorial jurisdiction,
the case would normally be covered by the saving
clause under Section 531 of the 1898 Code (present
Section 462 of the 1973 Code).
37. From the above discussion, it is possible to take a
view that the words “tries an offence” are more
appropriate than the words “tries an offender” in
Section 461(l). This is because, lack of jurisdiction to
try an offence cannot be cured by Section 462 and
hence Section 461, logically, could have included
the trial of an offence by a Magistrate, not
empowered by law to do so, as one of the several
items which make the proceedings void. In contrast,
the trial of an offender by a court which does not
have territorial jurisdiction, can be saved because of
Section 462, provided there is no other bar for the
court to try the said offender (such as in Section 27).
But Section 461(l) makes the proceedings of a
Magistrate void, if he tried an offender, when not
empowered by law to do.”
CRL.PET.599/2024 Page 20
30. It appears from the observations made by the Apex Court in the
aforesaid judgment that if an offender is tried by a court lacking
territorial jurisdiction, the trial is still protected under Section 462 of
the Code of Criminal Procedure, 1973. Therefore, even if it is assumed
that no part of the alleged offence occurred within the territorial
jurisdiction of the Court of the learned Chief Judicial Magistrate, the
learned Sessions Judge could not have set aside the order, as it is
saved by the provisions of Section 462 of the Code of Criminal
Procedure, 1973. However, in the instant case, as discussed here in
above, there are materials to show that the power tillers were to be
delivered to the petitioner at Mangaldai, Darrang.
31. Since the learned counsel for the petitioner has chosen not to press
the ground of constructive res judicata raised in paragraph No. 10 of
the petition, I deem it unnecessary to address the issue further.
32. For reasons discussed in foregoing paragraphs, this Court is of
considered opinion that the Court of learned Session Judge, Darrang,
Mangaldai had not taken into consideration the materials on record as
well as also did not consider the provision of Section 179 of the Code
of Criminal Procedure, 1973 as well as 462 of the Code of Criminal
Procedure, 1973 and set aside the order of the learned Chief Judicial
Magistrate, Darrang, Mangaldai erroneously.
33. As a result, this Court is constrained to set aside the impugned order
dated 29.04.2024, passed by the learned Sessions Judge, Mangaldai,
in Criminal Revision No. 1 of 2022, and to restore the order dated
12.11.2021, passed by the learned Chief Judicial Magistrate, Darrang,CRL.PET.599/2024 Page 21
Mangaldai, in C.R. Case No. 243 of 2014, wherein charges were
framed against respondent No. 2 under Sections 420, 406, and 385 of
the Indian Penal Code.
34. The Respondent No. 2 is directed to appear before the Court of the
learned Chief Judicial Magistrate, Darrang at Mangaldai, on
24.02.2025 to face the trial.
35. This Criminal Petition is accordingly allowed.
36. The Registry to send back the case records to the concerned courts
from where they were requisitioned, along with a copy of this
judgment.
37. Also send a copy of this judgment to the Court of learned Chief
Judicial Magistrate, Darrang, Mangaldai for doing the needful.
JUDGE
Comparing Assistant
CRL.PET.599/2024 Page 22
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