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citation codes
Case Number
Attorney(S)
  • Major V.C. Chaturvanshi
Judges
  • A.L Bahri
  • G.C Garg, JJ.
Acts
  • provisions of the Advocates Act, 1961. Under Sections 29 and 30 of the Advocates Act
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Major V.C. Chaturvanshi
Judges
  • A.L Bahri
  • G.C Garg, JJ.
Acts
  • provisions of the Advocates Act, 1961. Under Sections 29 and 30 of the Advocates Act
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Smart Summary

Judgment Summary — Extracts from Opinion of A.L. Bahri, J.

Factual and Procedural Background

The writ petition was filed under Article 226 of the Constitution by the petitioner, father of Satya Bir Singh Kaushik, who had been convicted by a Court Martial and was lodged in District Jail, Bareilly (Uttar Pradesh). The petitioner challenged the order of conviction passed by the Court Martial. The petitioner claims to be resident of village Budha Khera, Tehsil and District Jind, and on that basis filed the petition in this High Court, although the incident and the Court Martial proceedings that resulted in the conviction took place beyond this Court's territorial jurisdiction.

The matter was adjourned on two occasions because the counsel for the petitioner, Shri R.S. Saini, was unable or unwilling to satisfy the Court about its territorial jurisdiction; Shri Saini appeared unofficially but did not address arguments and submitted a list of books. The Court obtained assistance from Major V.C. Chitravanshi of the Army Legal Cell, who appeared and assisted the Court. The impugned order of conviction was not produced with the writ petition; only annexures of the charge-sheet and an order intimating the sentence were reproduced in the petition. The convicted person (Satya Bir Singh Kaushik, Ex. Naik, Engine Fitter No. 14536337 of 23 Air Op Flight, C/o 56 A.P.O) was sentenced to rigorous imprisonment for four months with effect from December 28, 1992, and sent to civil prison at Bareilly on that date.

The central procedural question before the Court was whether any part of the cause of action arose within this Court's territorial jurisdiction so as to permit exercise of powers under Article 226(2) of the Constitution. After examining authorities and submissions (including those placed before it by Major Chitravanshi and the list of books submitted by Shri Saini), the Court concluded that the writ petition could not be entertained in this High Court and dismissed it.

Legal Issues Presented

  1. Whether this High Court has territorial jurisdiction under Article 226(2) of the Constitution to entertain a writ petition challenging a Court Martial conviction when the incidents, trial and conviction occurred outside this Court's territorial jurisdiction.
  2. Whether the mere residence of the convicted person or his father within this High Court's territory is sufficient to confer jurisdiction to entertain such a writ petition.
  3. Whether the absence of production of the impugned order (only annexures/charge-sheet reproduced) affects the inquiry as to territorial jurisdiction.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
G.B. Singh v. Union of India, 1973 Cri LJ 485 (Allahabad High Court) Illustrates that a High Court could entertain a writ petition where the cause of action accrued within its jurisdiction even though the Court Martial was convened elsewhere. The Court observed that in that case the cause of action had accrued within the jurisdiction of the Allahabad High Court and therefore the petition was entertained; the decision was cited to show the territorial-accurrence principle.
Gurdeep Kaur v. Union of India, 1990 (2) Recent Criminal Reports 20 Support for the proposition that mere residence of the detainee does not invest the High Court with jurisdiction if no part of the prejudicial activity occurred within its territorial jurisdiction. The Single Judge dismissed the petition for want of jurisdiction; the Court quoted the observation that mere residence (e.g., Mohali) does not confer jurisdiction where prejudicial activity did not occur in the Court's area.
S.N. Mukherjee v. Union of India, 1990 (2) RSJ 808 Mentioned in the list of authorities submitted by the petitioner's counsel. The Court recorded that in none of the cases listed by the petitioner (including this one) did the question of territorial jurisdiction arise or get decided; hence their ratios were not applicable to the present case.
Ex. Havaldar Yadvinder Nath Sharma v. Union of India, 1987 (2) Recent Criminal Report 248 Mentioned in the list of authorities submitted by the petitioner. The Court noted that the question of jurisdiction did not arise or was not decided in this authority; it was therefore not applicable to the present jurisdictional issue.
Union of India v. Naik Subedar Baleshwar Ram, 1989 Supp (2) SCC 652 : AIR 1990 SC 65 Mentioned in the list of authorities submitted by the petitioner. The Court stated that the question of jurisdiction was not raised or decided in this case and therefore its ratio did not apply to the present matter.
Major Suresh Chand Mehra v. The Defence Secretary (U.O.I.), 1991 (1) SLR 187 : (1991) 2 SCC 198 : AIR 1991 SC 483 Mentioned in the list of authorities submitted by the petitioner. The Court recorded that this decision did not decide the territorial jurisdiction question and so its ratio was not applicable to the present case.
Satbir Singh Kaushik v. Union of India, Civil Writ Petition No.14958 of 1990 (order dated January 15, 1992) An earlier order by the same Court involving the same-named petitioner (Satbir/Satya Bir Singh Kaushik) seeking directions under Arts. 226 and 227. The Court observed that the earlier order disposed of the petition by directing representation for consequential reliefs and did not decide the matter on merits; thus it was not helpful in determining the jurisdictional question now before the Court.

Court's Reasoning and Analysis

The Court began by identifying the relevant constitutional provision, quoting Article 226(2) verbatim as reproduced in the opinion, and explaining its plain meaning: the High Court may exercise its writ jurisdiction if the cause of action, wholly or in part, arises within the territories in relation to which the High Court exercises jurisdiction.

The Court applied the ordinary principles of territorial jurisdiction (as found in the Code of Civil Procedure and in the established understanding of Article 226(2)) and emphasized that a litigant's residence alone does not create a cause of action within a Court's territory. The challenge in the petition was to the order of conviction, which was founded on incidents and a trial that took place outside the territorial jurisdiction of this High Court.

The Court noted procedural deficiencies in the petition (specifically, that the copies of the impugned order had not been produced and only annexures of the charge-sheet and the order intimating sentence were reproduced). It considered whether any part of the cause of action had arisen within this Court's jurisdiction but found none: neither the precipitating incidents nor trial nor conviction occurred within the Court's territory.

The Court reviewed authorities cited by both sides. It accepted the proposition demonstrated by G.B. Singh that a High Court may entertain a petition if the cause of action accrues within its territory; it relied on Gurdeep Kaur as an authority that mere residence does not confer jurisdiction. The other authorities produced in the list by the petitioner were observed to be inapposite because in those cases the territorial jurisdiction question did not arise or was not decided. An earlier order in a similarly numbered/entitled writ petition by the same-named person was found to be a disposal without decision on merits and therefore not useful for deciding jurisdiction.

On the basis of the foregoing analysis — the text of Article 226(2), the application of territorial principles, the absence of any part of the cause of action within this Court's territorial jurisdiction, and the inapplicability of the cited authorities to the jurisdictional question — the Court concluded that it could not entertain the present writ petition.

Holding and Implications

Holding: The writ petition cannot be entertained in this High Court for want of territorial jurisdiction and is therefore DISMISSED.

Implications:

  • The direct effect is that the petitioner’s challenge to the Court Martial conviction is dismissed by this High Court for lack of territorial jurisdiction; the Court did not proceed to consider the merits of the challenge to the conviction.
  • The Court recorded that several authorities cited by the petitioner did not decide the territorial jurisdiction issue and therefore did not establish a basis for entertainment of the petition in this Court.
  • The opinion does not purport to lay down a new legal principle; it applies settled territorial jurisdiction principles under Article 226(2) and does not decide the merits of the conviction or other substantive reliefs sought.

Petition dismissed.
Show full summary ...

    Rajinder Singh v. Union Of India And Ors.

    A.L Bahri, J.:— Before referring to the question which cropped up for our adjudication, at this stage we consider it appropriate to comment on the conduct of the counsel for the petitioner Sh. Ram Sarup Saini, who had filed this writ petition. The petitioner is the father of Satya Bir Singh Kaushik, who was convicted by Court Martial and is lodged in District Jail, Bareilly (Uttar Pradesh). The challenge in this writ petition is to the order of conviction passed by the Court Martial, Rajinder Singh petitioner claims to be resident of village Budha Khera Tehsil and District Jind. On that account, he filed the present writ petition in this Court, otherwise, the incident which resulted in the conviction of Satya Bir Singh Kaushik or his trial by the Court Martial and the order of conviction took place beyond the territorial jurisdiction of this Court.

    2. The case having been adjourned on two dates of hearing, when the counsel for the petitioner was unable to satisfy about the jurisdiction of this Court to entertain the writ petition, we requested the standing Counsel of Union of India to assist us in this matter. He succeeded in securing the help of Major V.C Chitravanshi, from the Legal Cell of the Army at Chandimandir. Major V.C Chitravanshi appeared before us on February 9, 1993 and he was posed the question which was incorporated in our order dated February 9, 1993. Today he has again appeared and has addressed. However, Shri R.S Saini Advocate, though appeared unofficially, did not address arguments. He submitted list of books. We have taken out those books and have studied the same and we are preparing the judgment accordingly. Shri Saini did not address the Court on account of lawyers being on strike. When an Advocate accepts brief of a litigant on acceptance of fees, he is duty bound to conduct the case in Court. He becomes a privileged person who can address the Court under the provisions of the Advocates Act, 1961. Under Sections 29 and 30 of the Advocates Act such an Advocate engaged by the litigant has a right of audience in the Court in the cause. Lawyers engaged in the cases by intentionally and deliberately absenting from the Court when cases are called are not serving the cause of the litigants, their paymasters. Appearing in Court and not getting presence recorded and further not arguing the case is still worse and is unprofessional and unethical. Present is such a case where though Shri Saini has come to the Court, but does not want to address the Court or to get his presence recorded. What legal sanction the Association of Lawyers has to give call to the Lawyers to go on strike is beyond our comprehension. The fear in the lawyers as is being projected by Mr. Saini, not to argue the case of being punished by the Association for his appearance in Court on account of the call given by the Association to go on strike or in other words to abstain from appearing in Court, has no legal basis. The functioning of the Courts in the matter of administration of justice is not to be regulated or controlled by the Association of lawyer, in the manner of giving calls to its members to go on strike and not to appear in Courts in their cases which is not legal. When such association of lawyers have no arrangement for providing work (judicial work) to its members for their livelihood, how such calls are given for strike by such associations. Further comments can only be given as and when action of any Association in imposing penalty on a lawyer is challenged in any Court. If the position is examined from a different angle, the result would be alarming. The primary function of the Court is to administer justice to and between the parties approaching Courts. The Courts would be failing in their duties in not performing such a function merely on the ground that lawyers choose to abstain from appearing in Courts. The judges are supposed to train themselves to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel. There is no legal impediment in the way of the Court not to administer justice when lawyers abstain from appearing in Courts or they appear but refuse to assist the Court in the administration of justice. Code of Civil Procedure contains provisions for proceeding with cases where parties fail to appear. What is more unfortunate is that the law officers of the offices of the Advocate General Punjab, and Haryana are also not putting in appearance on behalf of the States they represent in the cases despite the fact that they are paid government employees. It is unfortunate that the States have not taken any steps to protect their interest by causing appearance of their Law Officers or other officers from the concerned departments on the days their law officers are not appearing.

    3. It cannot be assumed that the Judges can have paid holidays without working on a day when the members of the Bar choose to abstain from work of refuse to appear in the Courts to protect the interest of their clients. In our opinion the Judges cannot treat a day of strike as a paid holiday. They are supposed to work and dispose of the cases themselves, even when unaided by lawyers of the parties by going through the records of the cases. They cannot shirk their responsibility and duty of administration of justice by simply showing helplessness. As is said the show must go on, the work in the Courts must go on. Present is such a case where we have gone through the books mentioned in the list provided by Mr. Saini Advocate, and the case law submitted by Major V.C Chaturvanshi, Cell of the Army. In a way, we are thankful to Mr. Chaturvanshi, for assisting us in the performing of our function.

    4. The present writ petition has been filed under Article 226 of the Constitution for quashing the conviction order passed against Satya Bir Singh Kaushik, Ex. Naik, Engine Fitter No. 14536337 of 23 Air Op Flight, C/o 56 A.P.O He was sentenced to Rigorous Imprisonment for four months with effect from December 28, 1992, as per copy of the charge-sheet reproduced in the petition. Copy of the order is also reproduced in the petition sending him to civil prison, Bareilly on December 28, 1992. At this stage, it may be noticed that the copies of the impugned order have not been produced along with the writ petition. Only the annexures of the charge-sheet and the order intimated to Satya Bir Singh Kaushik have been reproduced in the writ petition. It is on these premises that it is to be decided as to whether any cause of action or part thereof has arisen within the territorial jurisdiction of this court to entertain this writ petition. Art. 226 of the Constitution empowers the High Court to issue appropriate writs directions or orders Article 226(2) of the Constitution of India, which is relevant for consideration is reproduced:—

    “The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

    5. A bare perusal of the provision of Art. 226(2) would show that High Court could entertain the writ petition if cause of action, wholly or in part, arises within its territorsal jurisdiction. The case of the petitioner as projected in the writ petition is the order of conviction made by the Court Martial can be challenged in any High Court, within whose jurisdiction Satya Bir Singh Kaushik or his father is residing. The broad proposition projected as above, cannot be accepted if general principles with respect to territorial jurisdiction as contained in the Code of Civil Procedure are taken into consideration. It is not plaintiif's residence that gives cause of action for entertainment of a suit. Simply because Satya Bir Singh Kaushik or his father are residents of a village in District Jind, will not clothe this Court with jurisdiction to entertain this writ petition The challenge in the writ petition is to the order of conviction and the order of conviction is based on set of circumstances involving incidents. Since neither of such incident took place within the territorial jurisdiction of this Court nor Satya Bir Singh Kaushik was tried or convicted by the Court Martial within the territorial jurisdiction of this Court, the present writ petition cannot be entertained. Mr. Chaturvanshi, referred to the decision of Allahabad High Court reported as G.B Singh v. Union of India. 1973 Cri LJ 485 That was a case where Court Martial was convened at Nagpur against delinquent for the misconduct alleged to have been committed by him at Kanpur. The Allahabad High Court in these facts was held to have jurisdiction to entertain the writ petition. Since the cause of action hud accrued within the jurisdiction of Allahabad High Court, the writ petition was entertained.

    6. The other case referred to by Major Chaturvanshi is of this Court in Gurdeep Kaur v. Union of India, 1990 (2) Recent Criminal Reports 20. The single Judge of this Court dismissed the petition for want of jurisdiction observing as under:—

    “No part of the prejudicial activity which may have taken place in any area under the jurisdiction of this Court has been mentioned in the grounds Annexure P-4. Simply because the detenu is a resident of Mohali, does not invest this Court with any jurisdiction. It is not disputed that criminal cases for violation of various Acts are registered at Ahmedabad and they are being proceeded with.”

    7. A brief reference be now made to the judgments which have been mentioned by Mr. Saini, Advocate in the list of books submitted S.N Mukherjee v. Union Of India., 1990 (2) RSJ 808. Ex. Havaldar Yadvinder Nath Sharma v. The Union of India, 1987 (2) Recent Criminal Report 248, Union of India v. Naik Subedar Baleshwar Ram, 1989 Supp (2) SCC 652 : AIR 1990 SC 65 and Major Suresh Chand Mehra v. The Defence Secretary (U.O.I), 1991 (1) SLR 187 : ((1991) 2 SCC 198 : AIR 1991 SC 483). In none of the cases referred to above, the question of jurisdiction arises of decided. Ratio of the decisions aforesaid, therefore, is not applicable to the case in hand. No further comment is necessary.

    8. Lastly, reference was made to a copy of the order passed in Civil Writ Petition No. 14958 of 1990 Satbir Singh Kaushik v. Union of India, decided on Junuary 15, 1992, by this court. A direction was sought under Arts. 226 and 227 of the Constitution calling upon Union of India and Military Authorities to reintate rank of Naik to the petitioner of which he was deprived illegally and the case came up before the same Bench Learned counsel for the petitioner stated that the rank had been restored but consequential reliefs were not granted. The Bench observed that the petitioner would be at liberty to make a representation for consequential reliefs which the respondents would decide expeditiously preferably within six months from the date of its submission. Thus, the writ petition was disposed of. From the nature of the order as noticed above it cannot be said that any decision on merit was given by the Court. Such an order is hardly helpful in deciding the question of jurisdiction debated.

    9. For the reasons recorded above, this writ petition cannot be entertained in this Court and is, therefore, dismissed.

    Petition dismissed.

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    Comments

    Rajinder Singh v. Union Of India And Ors.
    (Feb 16, 1993)