It is the Constitution of India, under Chapter V part 6, created the High Courts as an highest court in the state for the protection and protection of the fundamental rights as well as constitutional rights an individual regardless of the nationality of the individual[1(1). The Article 226 in the Constitution allows the Hon’ble High Courts to exercise their power by issuing writs, mandamus, habeas corpus, prohibition, quo warranto, and certiorari, or any other appropriate writ. But, Article 323 A and 323-B of the Constitution[2] have removed the jurisdiction of Hon’ble High Court with regard to the subject matter enlisted. Thus, the exercising of the authority is discretionary and is subject to the possibility and exhaustion of alternative remedies by the petitioner.
“27 The law principles which are revealed is that :
(i) The power under Article 226 of the Constitution to issue writs could be utilized not only to enforce the fundamental rights of citizens, but also for any other reason as well;
(ii) The High Court has the power to choose not to hear an writ request. One of the limitations put on the authority to the High Court is where an alternative remedy exists for an injured individual;
(iii) exceptions to the rules of alternate remedies arise when (a) the petition was filed to the exercise of a fundamental right guaranteed in Part III of the Constitution; (b) there has been an infringement of the fundamentals of natural justice (c) the decision or the proceedings are completely without jurisdiction, (c) the order or proceedings are without jurisdiction; (d) the legality of a law is challenged.
(iv) A different remedy is not a reason to deprive of the High Court of its powers under Article 226 of the Constitution in the case of a need, although, generally the writ petition will not be considered if an effective alternative remedy is provided by law.
(v) If the right is provided through a statute that defines the method or remedy to enforce the right or obligation the court must resort to the specific legal remedy prior to invoking the discretionary remedy in article 226 in the Constitution. The rule of exhaustion of the statutory remedies is a principle of convenience, policy and discretion.
(vi) when there are disputes over fact or law, it is possible that the High Court may decide to deny jurisdiction to the case of a writ complaint. However, if High Court is objectively of the opinion that the nature of the dispute warrants the application of its writ power the view of this Court would not be able to be questioned.”
under Article 226 of Constitution
The above-mentioned principles are upheld in the Honorable Supreme Court in Seth Chand Ratan v. Pandit Durga Prasad[6], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot[7 as well as Rajasthan SEB v. Union of India[8[8]. Thus, the authority of Hon’ble High Courts has not been entirely wiped out by the addition of Articles 323-A, 323-B from the Constitution of India. The authority of the The Hon’ble High Court as stated under paragraph (2) in Article 226, is as follows: “(2) 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.”
High Court Jurisdiction under Article 226 of Constitution
In Om Prakash Srivastava v. Union of India[9], the Hon’ble Supreme Court was pleased to observes with regard to ‘cause of action’ vis-à-vis the jurisdiction of the Hon’ble High Court, in paragraph 7, 8 and 14 as under:- “7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court’s jurisdiction and such infringement may take place by causing him actual injury or threat thereof.
8. Two of the provisions in Section 226 of the Constitution in plain reading provide an explicit indication to the High Court can exercise power to issue directions, orders or writs in the exercise one of the rights fundamentally granted through Part III of the Constitution or for any other reason in the event that the cause of the action in whole or in part was arose within the territory to which it has authority, notwithstanding that the place of residence of the authority or government or the home of the person to who the direction or order issued isn’t within the stated territories. xxx 14.
The term “cause of action” is typically understood to mean an event or set of facts that permits one party to bring an action before the form of a tribunal or court or tribunal; a set of operational facts that provide one or more grounds for litigating; a situation that allows one to seek relief before a court from another (see Black’s Law Dictionary). The the Stroud’s Judicial Dictionary a “cause of action” is defined as the complete set of circumstances that give the possibility of a valid claim and includes each fact that, is traversed by the plaintiff, he must prove to get a ruling. In Words and Phrases (4th Edn.) The meaning of the term “cause of action” in the common law is the that it is a fact which confer the right to have judicial intervention on behalf of. (See Navinchandra N. Majithia v. State of Maharashtra).” The Honourable Supreme Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu[10] has stated in paragraph 5 and 6 that: “5. The clause (1) in Article 226 starts with a non-obstante clause that is in addition to anything contained in Article 32. Clause (1) stipulates that each High Court shall be able “throughout the territories in relation to which it exercises jurisdiction” to issue to any authority or person or authority, including, in the appropriate instances or in appropriate cases, any government “within those territories” directions orders, writs or other writs to enforce the rights granted under Part III or to serve any other purpose.
In Clause (2) in Article 226 it is stated that the High Court may exercise its powers that is conferred upon it by the clause (1) when the reason for the action, either in totality or in part, originated within the territory which it exercises its jurisdiction, regardless of the fact that the location of the Government or authority or the home of the person in question isn’t in those territories. When you read the two provisions of article 226 in the Constitution it becomes apparent that the High Court is able to exercise the authority to issue directions or orders to enforce one of the rights fundamentally guaranteed through Section III of the Constitution or to fulfill any other purpose, when the reason for the action, either in whole or partially, occurred within the territory its authority, even if the location of the government or authority, or the place of residence of the person to whom the directive, order or writ is issued , is not located within those regions. To confer the jurisdiction of the High Court of Calcutta, NICCO must demonstrate that at a minimum, a portion of the cause originated within the jurisdiction of this Court. It is the best claim in the petition to writ. 6.
It is generally accepted that the term “cause of action” means the set of facts the petitioner must prove when he is traversed, in order to be entitled him to a decision in his favor in the Court. The case of Chand Kour in v. Partab Singh, Lord Watson stated: “… the cause of action has no connection whatsoever to the defense that could be put forward by the defendant or on the nature of the relief sought in the case of the defendant. It is solely a reference to the grounds set out in the complaint as the basis for action, or more precisely, to the media that the plaintiff seeks the Court to come to an outcome in his favor.”
In deciding the issue of non- territorial jurisdiction, the court has to examine all the facts presented to support the claim into consideration, without making an inquiry into the truthfulness or falsity of the facts. Also, the issue of whether a High Court has territorial jurisdiction to consider a writ petition is to be determined by examining the allegations by the petitioner, with the truth or otherwise of which is irrelevant. In other words the issue of territorial jurisdiction needs to be determined based on the facts presented within the petition.
So, the question of whether it was the Calcutta High Court had jurisdiction to hear and decide on the writ petition regardless of the allegations made is dependent on whether the assertions that are made in paragraphs 5, 7 18 22 26, and 43 constitute sufficient under law to prove that a particular part in the cause been brought under the area of jurisdiction that of Calcutta High Court.” Based on the findings and directives from the Hon’ble Supreme Court of India, the Hon’ble High Court may exercise their discretion when exercising their power under Section 226 under the Constitution of India and safeguarding and defending the fundamental rights of individuals. For criminal matters, the primary law that governs the question of jurisdiction refers to the Code of Criminal Procedure, 1973. Its Chapter – XIII defines the authority of the court in relation to the criminal issue. The code provides a comprehensive listing of ’causes of action to establish the authority for the Hon’ble High Court.
It is the Hon’ble Supreme Court in Kaushik Chatterjee v. State of Haryana[11] has summarized the legal jurisdiction of the court to decide the case in the following manner “21. The rules laid out in Sections 177 through 184 of the Code (contained in Chapter XIII) concerning the jurisdiction of the criminal Courts in trials and inquiries can be summarized in the following manner:
(1) Every offence is required to be investigated or tried before a court within the jurisdiction of the place where the offense was committed. This is a rule that can be located within Section 177. The term “local jurisdiction” found in Section 177 is defined in Section 2(j) as “in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code”
(2) In the event in doubt about the area within which, out of many local areas where an offence occurred the Court with the jurisdiction over any of those localities may investigate or even try the offence.
(3) When an offense is committed in a particular location and in part in another, it can be investigated or tried by a court with authority over one of these local jurisdictions.
(4) If there is a case of a continuous offence that occurs in multiple localities than one could be investigated or investigated by a court that has jurisdiction over any one of the localities.
(5) If an offence is a result of multiple actions committed in different localities, it could be investigated and tried before a court with jurisdiction over any of the localities. (Numbers 2-5 are related to Section 178.)
(6) If something is a crime by consequence of the action in addition to the consequence that followed and the consequence that followed, then the offence can be investigated or trial by a Court in the jurisdiction of the local area wherein the act was performed or the consequence resulted. (Section 179)
(7) In the event when an act is considered to be an offence because of its relationship to other act that also constitutes an offence, the first offence mentioned could be investigated or tried by a court within the jurisdiction of the local court where either of the actions was committed. (Section 180)
(8) In some circumstances, like dacoity, the committing of murder, or escaping from detention, and so on. The offence could be investigated and tried by a Court in whose local jurisdiction the offense took place or where the suspect was identified.
(9) In the event of an incident of abduction or kidnapping, it can be investigated or heard by a Court in the local jurisdiction of which the victim was abducted or escorted or hidden or in custody.
(10) The crimes such as theft, extortion, or robbery can be investigated and tried in a court in the local jurisdiction where the crime was committed, or the property that was stolen was in possession, received or kept.
(11) A charge of criminal misappropriation or a criminal breach of trust could be tried or inquired into by a Court in whose local jurisdiction the offense was committed, or by a Court in whose jurisdiction any part or part of property taken in or kept, or must be returned to or compensated for by the person accused.
(12) A crime that involves the ownership of property stolen could be investigated or tried by a court in the jurisdiction of the area where the crime was committed, or the property that was stolen was owned by anyone who knew that it was stolen property. (Nos. 8-12 are listed within Section 181)
(13) A crime that involves cheating, carried out through messages or letters can be investigated or trial by any Court in the area of jurisdiction where the messages or letters were delivered or received.
(14) The offence of dishonestly causing delivery of property could be tried or inquired into by a court within the area of jurisdiction it was handed over by the person who deceived the recipient or received by the person accused.
(15) Certain crimes are connected to marriage, such as Section 494 of the IPC (marrying repeatedly during the lifetime of the spouse or husband) as well as Section 495 of the IPC (committing an offence in violation of Section 494 by concealing the facts of the previous marriage) can be investigated or considered by the court in the local jurisdiction where the offense was committed or the person who committed the offence last lived with the spouse during the time of their first marriage. (Nos. 13-15 are found (Nos. 13 to 15 are found in Section 182)
(16) A violation that is committed during an expedition or journey may be investigated or tried by a court through or within the local jurisdiction of the subject or object was through during that journey or trip. (Section 183).
(17) Cases that fall within Section 219 (three crimes similar to the ones that were committed within the space of 12 months, regardless of whether they are in the case by the exact same persons or otherwise) and cases that fall in the scope of Section 220 (commission of more than one, within a sequence of actions in the course of forming the same incident) and those falling in the scope of Section 221 (where there is doubt as to the nature of the offenses committed) can be examined or trial by any Court that is competent to investigate or determine the nature of offenses. (Section 184).
In addition (Section 184). section 2(e) in the Code 1973 provides the definition of “High Court” as: “(e)”High Court” means,- (i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the juris- diction of the High Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;” In the light of the above law , as stipulated in the statute and as as that of the Hon’ble Supreme Court, it is obvious that the Hon’ble High Court is able to decide on all criminal cases that fall within its court’s jurisdiction. But, in relation to FIRs/complaints filed in a different state the Hon’ble Supreme Court in Navinchandra N. Majithia v. State of Maharashtra[12] and was pleased to note in paragraph 43: “43. We emphasize that the fact that an FIRs were filed in a particular state cannot be the primary criteria to decide if a cause of action was arose even if it is within the territorial boundaries of the jurisdiction of a different State.
Also, it should be told that any individual can invent a fake cause of action, or create one simply by jotting into the territorial borders of a different state or taking a trip or an ongoing residence in the State. The location of residence of the person who is submitting to a High Court is not the basis for determining the nature of the reason for action in the particular writ petition. It is the High Court before which the petition is filed has to be able to determine if any part of the cause was triggered within the territorial boundaries of its area of jurisdiction. It is based on the circumstances in every instance.”
So, reading of the statute and the decisions of the courts shows that the power of the Hon’ble High Court is not restricted to the location of recording the report under Section 154 under the Code 1973. It is based on the “cause of action” which is defined and explained in the case of Hon’ble Supreme Court in the cases below and declare that if a portion of the cause of action is within the limits of its jurisdictional. The case in Manish Maheswari, a.k.a. State of Uttar Pradesh[13The petitioner filed an writ petition to the Hon’ble High Court of Karnataka, Bengaluru Bench to overturn the quashing of a notice issued under Section 41-A Code 1973 issued by Uttar Pradesh Police. In the end, the Hon’ble Court allowed the petition and struck down the notice and ruled that paragraph 50 reads”50 “50.
From the above we can conclude that it’s the responsibility to Constitutional Courts Constitutional Courts to act and guard against any threat to the fundamental rights of a citizen , and that their rights. Constitutional Courts cannot be shackled under the provisions in Article 226 (2) of the Constitution of India. In light of the above rulings and the particulars of the case, it is found that the writ petition is filed is filed by the petitioner, who is not a suspect and has no rights, is not subject to this Code of Criminal Procedure and considering the fact that the issue of Section 41A of the Cr.P.C Notice was vitiated by malafides and not having jurisdiction and therefore, the petition is considered to be enforceable. The questions to be considered are addressed accordingly.” Notifications1. Hong Kong & Shanghai Banking Corporation Ltd. in. Union of India, WP No. 388 of 2003.
[2] Inserted by the 42nd Constitutional Amendment.
[3] 2021 SCC OnLine SC 334.
[4] (1998) 8 SCC 1.
[5] (2003) 2 SCC 107.
[6] (2003) 5 SCC 399
[7] (1974) 2 SCC 706
[8] (2008) 5 SCC 632
[9] (2006) 6 SCC 207
[10] (1994) 4 SCC 711.
[11] (2020) 10 SCC 92.
[12] (2000) 7 SCC 640
[13] Writ Petition No. 11028/2021