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Case Number
Attorney(S)
  • D.D. Sharma
  • H.S. Bhullar
  • Amar Singh Sandhu
  • Harjinder Singh
Judges
  • Mr. Justice G.S. Chahal
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • D.D. Sharma
  • H.S. Bhullar
  • Amar Singh Sandhu
  • Harjinder Singh
Judges
  • Mr. Justice G.S. Chahal
Acts
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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner, Kanwarjit Singh, filed a petition under Article 226 of the Constitution of India read with Section 482 Cr. PC seeking a writ of mandamus or other appropriate relief to quash warrants of arrest issued by the Court of ACMM, New Delhi and to quash the complaint pending in that Court under Section 135(1)(b) of the Customs (as stated in the opinion) and Section 35 of the Gold (Control) Act, 1968, and for a writ of prohibition restraining respondents from acting on that complaint.

The factual basis recorded in the complaint (Annexure PI) states that on 6 January 1988 intelligence indicated that 520 foreign-marked gold biscuits would reach Delhi concealed in Truck No. DIL-1677. The truck was intercepted at Kundli on the Delhi–Haryana border by officers of the Directorate of Revenue Intelligence. Multan Singh and Malkeet Singh were occupants of the truck. A search allegedly revealed a cavity containing 520 foreign-marked gold biscuits (valued at approximately Rs. 2.12 crores). Because occupants could not produce documents of lawful importation/acquisition/possession, the gold and the truck were seized under Section 110 of the Customs Act, 1962 and provisions of the Gold (Control) Act, 1962.

Follow-up investigation led to statements implicating several persons, including Virsa Singh (accused 2) who in his statement described arrangements involving the petitioner in receipt and disposal of smuggled gold and gave details of transfers and movements related to the consignment. Nirmal Singh confirmed assistance in smuggling but did not give evidence of receipt of that consignment.

On the basis of the complaint the ACMM, New Delhi took cognizance and ordered issuance of production warrants against all accused including the petitioner. It is conceded that the petitioner had not been arrested and was not in judicial custody on the date cognizance was taken.

Legal Issues Presented

  1. Whether the courts at Delhi (specifically the ACMM, New Delhi) had territorial jurisdiction to entertain the complaint and issue warrants when the interception and seizure occurred at Kundli in the State of Haryana.
  2. Whether the warrants of arrest and the complaint should be quashed or restrained on the ground of lack of jurisdiction.
  3. Whether Section 462 of the Code of Criminal Procedure (proceedings in wrong place) can validate proceedings initiated in a forum lacking territorial jurisdiction at the initial stage when the accused promptly challenges jurisdiction.
  4. Whether the petitioner can invoke Article 21 (personal liberty) and Article 226 of the Constitution to prevent threatened or imminent infringement of liberty by seeking preventive relief from the High Court.
  5. Whether the availability of alternative remedies precludes the High Court from entertaining the petition under Article 226 in respect of alleged infringement or threatened infringement of fundamental rights.

Arguments of the Parties

Petitioner's Arguments

  • The Delhi courts lacked territorial jurisdiction because the interception and seizure occurred at Kundli, a place situated within the State of Haryana; therefore the ACMM, New Delhi had no authority to take cognizance and issue warrants.
  • The petitioner relied on his fundamental right under Article 21 of the Constitution (right to life and personal liberty) and argued that his liberty can be interfered with only by an order of an authority competent to issue that order; hence he sought protection under Article 226.
  • The petitioner asserted a right to preventive relief when there is a genuine apprehension of violation of personal liberty and that he need not wait for an actual violation to invoke the jurisdiction of the High Court under Article 226.

Respondents' / Union of India (UOI) Arguments

  • Counsel for the Union of India relied on Section 462 CrPC (proceedings in wrong place) to contend that proceedings should not be set aside merely because they took place in a wrong local area unless the error occasioned failure of justice.
  • Arguments were advanced (by learned counsel for UOI) suggesting that the term "authority" under Article 226(2) does not include a Court (a contention addressed by the Court with reference to precedent).
  • Respondents argued that petitioner had alternative remedies and should have availed himself of those before approaching the High Court (an argument the Court did not accept as determinative in this context).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mod Lai v. State, AIR 1952 Allahabad 963 The words "any person or authority" include Courts and tribunals; supports that "authority" can include a Court for purposes of constitutional remedies. The court relied on this observation to reject the contention that "authority" under Article 226(2) excludes courts and to support the petitioner's ability to invoke constitutional jurisdiction against judicial action affecting liberty.
Special Reference No. 1 of 1964, (1965) 1 SCR 492 When a citizen complains of violation of Article 21, the High Court must examine the contention; power under Article 226 is not subject to exception and is intended for protection of fundamental rights. The court cited this to affirm that citizens can invoke Article 226 for protection of fundamental rights (including Article 21) and that judicial power of High Courts extends to such matters.
S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors., JT 1989 (4) SC 365 Discusses ambit of "enforcement" of Article 21 and recognises that Article 226 can provide pre-violation (preventive) protection of personal liberty when there is a genuine apprehension of infringement. The court relied on this analysis to hold that the petitioner need not wait until actual deprivation of liberty; when there are overt acts and proximate steps threatening liberty, Article 226 may be invoked for preventive relief.
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295 Availability of ordinary remedies (civil/criminal/statutory) is irrelevant to the question whether a State action infringes a fundamental right; once infringement of fundamental right is shown, constitutional courts must afford relief without requiring exhaustion of other remedies. The court cited Kharak Singh to reject the contention that the petitioner must first exhaust alternative remedies before invoking Article 226 where fundamental rights (Article 21) are threatened or likely to be infringed.

Court's Reasoning and Analysis

The court's analysis proceeded in a sequence tied closely to territorial jurisdiction principles, the petitioner's fundamental right to personal liberty and the scope of constitutional remedies:

  1. Territorial jurisdiction: The complaint expressly stated that the interception occurred "at Kundli on Delhi-Haryana border," and Kundli was described as being situated within the State of Haryana. On the face of the complaint, therefore, the offence was committed within the territorial jurisdiction of Haryana and not Delhi. Section 177 CrPC provides that offences shall ordinarily be inquired into and tried by the court within whose jurisdiction they were committed; none of the exceptions in Chapter XIII were applicable. Consequently, the Delhi courts had no territorial jurisdiction to entertain the complaint or issue process.
  2. Section 462 CrPC argument rejected at this stage: The Union of India's reliance on Section 462 (which preserves findings, sentences or orders arrived at in a wrong local area unless the error occasioned a failure of justice) was considered. The court held that Section 462 was intended to prevent jurisdictional defects being raised after a case has ended following its full trial; it cannot be stretched to validate a situation where an accused promptly challenges the forum selection at the earliest occasion. The authorities had wrongly selected the ACMM, New Delhi as forum.
  3. Article 21 and Article 226 invoked: The petitioner invoked Article 21 (personal liberty). The court reviewed jurisprudence (Mod Lai, Special Reference No. 1 of 1964, S.M.D. Kiran Pasha) to conclude that the High Court's jurisdiction under Article 226 is available to protect personal liberty and that such protection may be sought before an actual deprivation of liberty occurs where there is a genuine apprehension or proximate overt acts threatening the right. The court emphasised the distinction between post-violation remedies (e.g., habeas corpus) and pre-violation or preventive relief under Article 226.
  4. Alternative remedies argument not accepted: Relying on Kharak Singh, the court observed that the existence of alternative remedies (civil or criminal) does not bar constitutional relief where there is an alleged infringement of fundamental rights; availability of ordinary remedies is irrelevant to the question of jurisdiction to consider fundamental rights claims.
  5. Conclusion from the above steps: Because there was a manifest defect of territorial jurisdiction in the ACMM, New Delhi taking cognizance of an offence committed at Kundli (Haryana), execution of the warrants would amount to interference with the petitioner's liberty otherwise than in due course of law. Accordingly, the court found it necessary to restrain respondents from giving effect to those warrants and from proceeding further on the complaint, while preserving respondents' rights to pursue remedies in the proper forum.

Holding and Implications

Holding: The court restrained the respondents from giving effect to the warrants of arrest issued against the petitioner by the ACMM, New Delhi, from arresting him on the basis of those warrants, and from proceeding further with the complaint in that Court. The petition was disposed of with those directions.

Implications:

  • Direct effect: The decision directly prevents the respondents from arresting the petitioner on the existing warrants issued by the ACMM, New Delhi and stops further proceedings on that complaint in that forum; the respondents remain free to seek legal remedies against the petitioner before the proper forum (i.e., courts having territorial jurisdiction).
  • On precedent and broader law: The opinion applies established principles concerning territorial jurisdiction (Section 177 CrPC), the limited scope of Section 462 CrPC in early-stage jurisdictional challenges, and settled constitutional principles on Article 21 and the remedial scope of Article 226 (including preventive relief). The court relied on existing Supreme Court and other authoritative decisions to justify its approach. The opinion does not purport to lay down a new precedent beyond applying and reconciling those authorities to the facts.

This summary is confined strictly to the content and reasoning contained in the provided opinion and does not add information beyond the opinion's text.

Show full summary ...

    Kanwarjit Singh v. Union Of India (Uoi)

    1. Kanwarjit Singh-petitioner, has come to this Court in this petition under Article 226 of the Constitution of India read with Section 482 Cr. PC for issuance of a writ of mandamus or any other appropriate writ, order or direction so as to quash warrants of arrest issued by the Court of ACMM, New Delhi and the complaint pending in that Court Under Section 135(1)(b) of he Customs not read with Section 35 of the Gold (Control) Act, 1968 and for issuance of a writ of prohibition restraining the respondents from taking any action on the basis of the said complaint.

    2. The facts on the basis of which the complaint had been filed against the petitioner and four others may be drawn from Annexure PI.

    3. On January 6,1988, a specific intelligence report was received indicating that Kanwarjit Singh @ Pehalwan had arranged for the smuggling of 520 foreign marked gold biscuits into the Amritsar Sector of the Indo-Pak Border which would be reaching Delhi in the evening of Jan 6,1988 concealed in Truck No. DIL-1677. In pursuance of the report, Truck No. DIL-1677 was intercepted at Kundli on Delhi-Haryana border by the officers of Directorate of Revenue Intelligence, New Delhi. Multan Singh-accused 5 and Malkeet Singh were the occupants of that truck. They, along with the Truck were taken to the complex of the Office of the Directorate of Revenue Intelligence at CGO Complex, Lodhi Road, New Delhi and search of the truck was carried out in the presence of two independent witnesses and Multan Singh and Malkeet Singh. This search led to the revealing of a cavity ingeniously conceived at the top of the wooden partition separating the driver's cabin from the rear body of the truck. On opening of the cavity 520 foreign marked gold biscuits of 10 totals each valued at Rs. 2.12 crores approximately were recovered. Since none of the occupants could produce any document showing lawful importation/acquisition/possession of the said gold biscuits, the same were seized Under Section 110 of the Customs Act, 1962 and the provisions of Gold (Control) Act,1962 on the basis of the reasonable belief that they were smuggled and liable to be confiscated under the Acts. The truck was also seized.

    4. During the follow up action, Virsa Singh, Nirmal Singh and Satpal Singh were also joined and interrogated and evidence was collected. Virsa Singh-accused 2 in his statement dated Jan 6,1988 stated that about two years earlier, he had come into contact with Kanwarjit Singh who had employed him in his fields and later on entrusted him with the work of disposal of the smuggled gold. That the gold used to reach Amritsar from Dubai Via Pakistan and Harjit Singh, a man working for Kanwarjit Singh, would deliver the gold to him which he would transport to Delhi and the gold would then be delivered to the persons nominated by Kanwarjit Singh. He was receiving Rs. 10,000/- per mensem as his wages for carrying out that job. Arrangement had also been made for his stay at H.No. B-14, Panchwati, Azadput, Delhi where two telephones were also installed. He had been receiving delivery of gold and disposing of the same. On Jan 4, 1988, he received a telephonic message from Kanwarjit Singh on telephone No 45650 instructing him to reach Rajpura on the morning of Jan 5, 1988 where Harjit Singh would deliver to him 520 foreign marked gold biscuits to be carried to Delhi and that further instructions will be given to him later. On receiving of these instructions he contacted Prem Motors, Jalandhar on phone where his truck No DIL 1677 was parked and instructed the driver Multan Singh to reach at Dhaba near by-pass of Rajpura on the noon of Jan 5, 1988. He then proceeded to Rajpura on a car and was accompanied by Nirmal Singh-elder brother of Kanwarjit Singh and Satpal Singh-accused-4, leaving Nirmal Singh and Satpal Singh to take tea, he himself drove to a Hotel on the roadside at Rajpura and contacted Harjit Singh who delivered 520 gold biscuits to him. He then approached the truck near the Dhaba, drove it to the car parked at some distance and after removing the gold from the car, concealed it in the cavity of the truck. He again drove the truck back to that Dhaba and handed over the same to Multan Singh with the instructions to take it to Jalandhar, change the tyres, load any cargo and reach Delhi. He himself proceeded to Delhi. After receiving another call from Kanwarjit Singh inquiring about the arrival of the gold, he made a telephonic all to Multan Singh and gave him the instructions to start for Delhi irrespective of getting any cargo. He learnt about the interception of the truck and the seizure of the gold only when he visited the DRI office on being summoned by the officers of the DRI.

    5. Nirmal Singh @ Nimma confirmed the fact of Virsa Singh assisting Kanwarjit Singh in smuggling of gold, but he did not provide any specific evidence with respect to receipt of the disputed consignment.

    6. On the basis of the complaint, the ACMM, New Delhi, took cognizance of the offence and ordered issuance of production warrants against all the accused including the present petitioner from the judicial custody. It is however, conceded at the bar that the petitioner had not been arrested in this case and was not in judicial custody on the date the cognizance of the offence was taken.

    7. The petitioner has challenged the complaint, its taking of cognizance and issuance of warrants mainly on the ground that the Delhi Courts had no jurisdiction to entertain the complaint.

    8. In the complaint, the specific statement is that the truck D1L-1677 carrying contraband gold had been intercepted "at Kundli on Delhi-Haryana border". This statement will clearly indicate that the place of interception was Kundli which is a town admittedly situate within the State of Haryana. Ex facie, the Courts at Delhi had no territorial jurisdiction to entertain the complaint.

    9. Section 177, Cr. PC lays down that every offence shall ordinarily be inquired into and tried by a court within whose jurisdiction it was committed. Chapter-XIII of the Code contains other exceptions, but none of the same are applicable to the present case. In this situation, the Courts at Delhi had no jurisdiction to entertain the complaint and to issue the process.

    10. Faced with the situation, Mr. D.D. Sharma, learned Counsel for UOI relied upon section 462 of the code, which reads as follows:-

    462. Proceedings in wrong place. -- No finding, sentences or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

    11. This section was obviously incorporated to ensure that the dispute about jurisdiction should not be taken after the case has ended after its proper trial. This section cannot be extended to a case where at the earliest occasion the accused person comes forth to challenge the jurisdiction of the Court. The authorities represented by Sh. A.K. Sinha had wrongly selected the forum of ACMM, New Delhi.

    12. It is not dispute that in the complaint the address of the petitioner had been given as 32, Golden Avenue, Amirtsar besides giving one of his Delhi addresses about the carrying out of raid and that a raid had been carried out on those residential premises on Jan 6,1988, but nothing incriminating except some fire arms which were licensed one had been recovered. The petitioner is, thus, justified in saying that a part of the cause of action arose within the jurisdiction of this Court and he can seek remedies available to him under the Constitution from this Court.

    13. The main argument of the learned Counsel for the petitioner is that Article 21 of the Constitution of India creates a fundamental right of liberty to the petitioner and this liberty could be interfered with only by a legal order passed by an authority competent to issue that order. Some arguments were advanced by the learned Counsel for UOI that the term "authority" under Article 226(2) does not include a Court. However, the following observations of a Division Bench of Allahabad High Court in Mod Lai v. State AIR 1952 Allahabad 963, support the argument of the learned Counsel that authority includes a Court:-

    The words 'any person or authority' include Courts and tribunals whether under the appellate jurisdiction of the High Court or not.

    14. Though the judgment was given with respect to proceedings under Article 227 of the Constitution of India, but the principles will also apply to a petition under Articles 226 of the Constitution of India.

    15. In Special Reference No l of 1964 reported in (1965) 1 SCR 492, which arose out of the dispute as to the constitutional relationship between the High Court and the Uttar Pradesh State Legislature, their Lordships of Supreme Court pointed out that when a citizen moves the Court and complains that his fundamental right under Article 21 is contravened, it would plainly be the duty of the Court to examine the merits of the said contention and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. It was further held that the power of the High Court under Article 226 of the Constitution of India and the authority of the Supreme Court under Article 32 are not subject to any exception. That the judicial power conferred on the High Courts and the Supreme Court is meant for protection of the citizens' fundamental rights and it cannot be contended that a citizen cannot move the High Court or the Supreme Court to invoke their jurisdiction even in case where his fundamental right have been violated.

    16. In S.M.D. Kiran Pasha v. The Government of Andhra Pradesh and Ors., JT 1989 (4) SC 365 their Lordships delved at length with the matter of enforcing of the rights by resort to Article 226 of the Constitution of India and I quote:

    Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. For enforcement of one's right to life and personal liberty resort to Article 226(1) has thus been provided for. What is the ambit of 'enforcement' of the right? The word 'enforcement' has also been used in Article 32 of the Constitution which provides the remedy for enforcement of rights conferred by Part III of the Constitution.

    The word 'enforcement' has not been defined by the Constitution. According to Collins English Dictionary to enforce means to ensure observance of or obedience to a law, decision etc. Enforcement, according to Webster's Comprehensive Dictionary, means the act of enforcing, or the state of being enforced, compulsory execution; compulsion. Enforce means to compel obedience to laws; to compel performance, obedience by physical or moral force: If enforcement means to impost or compel obedience to law or to compel observance of law, we have to see what it does precisely mean. The right to life and personal liberty has been guaranteed as a fundamental right and for its enforcement one would resort to Article 226 of the Constitution for issuance of appropriate writ, order or direction. Precisely at what Stage resort to Article 226 has been envisaged in the Constitution?

    When a right in so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed?

    Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is yet to be violated, but is threatened with violation can the citizen move the Court for protection of the right?

    The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate the right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection. Post-violation resort to Article 226 is for remedy against violation for restoration of the right while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right? Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated where after alone he could petition for a writ of habeas corpus? In the instant case when the writ petition was pending in court and the appellant's right to personal liberty happened to be violated by taking him into custody in preventive detention, though he was released after four days, but could be taken into custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus? The difference of the two situations as we have seen, have different legal significance. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right.

    17. From the above quoted paragraph, it is thus clear that persons whose rights are likely to be violated, thus, need not wait till the same are in fact violated for invoking jurisdiction of this Court under Article 226 of the Constitution of India. Whenever there is a genuine apprehension of the rights being violated, the citizen has the right to invoke the jurisdiction of this Court.

    18. Some arguments were advanced by the learned Counsel for the respondent in support of his contention that the petitioner had alternative remedy and he should have availed of the same. I am, however, unable to support his argument.

    19. Following observations of their Lordships of Supreme Court in Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295 may be quoted as a guideline for dealing with the matter where fundamental rights of a citizen are infringed:-

    The fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the ordinary course is wholly immaterial and we would add irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State executive infringes a guaranteed liberty only when it is not authorised by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action -- civil or criminal at the instance of the injured person for redress. It is wholly erroneous to assume that before the jurisdiction of this Court under Article 32 could be invoked, the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this Court that by State action the fundamental right of a petitioner under Article 32 has been infringed, it is not only the right but the duty of this Court to afford relief to him by passing appropriate orders in that behalf.

    20. Since there is a manifest defect of jurisdiction in the Court of the ACMM, New Delhi to take cognizance of the offence committed at Kundli within the State of Haryana, the execution of the warrants against the petitioner will amount to interfering with his liberty otherwise than in due course of law. The respondents are, thus, restrained from giving effect to the warrants of arrest issued against the petitioner by the Court of ACMM, New Delhi and from arresting him and also from proceeding further with this complaint. This order shall, however, not debar the respondents from seeking legal remedies against the petitioner before the proper form. With these directions, this petition stands disposed for.

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    Comments

    Kanwarjit Singh v. Union Of India (Uoi)
    (Oct 20, 1993)