PETITIONER:
RAJ KUMARI VIJH
Vs.
RESPONDENT:
DEV RAJ VIJH
DATE OF JUDGMENT15/02/1977
BENCH:
SHINGAL, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
CITATION:
1977 AIR 1101 1977 SCR (2) 997
1977 SCC (2) 190
ACT
Code of Criminal Procedure, 1898--Ss. 488 and 531--Scope of.
HEADNOTE
Section 531 of the Criminal Procedure Code, 1898 provides
that no finding, sentence or order of any criminal Court
shall be set aside merely on the ground that the enquiry,
trial or other proceeding in the course of which it was
arrived at or passed, took place in a wrong sessions divi-
sion, district, subdivision or other local area, unless it
appears that such error has in Tact occasioned a failure of
justice.
In her claim for maintenance from the respondent, who
was her husband, the appellant filed a petition under s. 488
Cr.P.C. in the Court of a Magistrate. The respondent took
objection to the Court’s jurisdiction to try the case on the
ground that the parties did not reside within its jurisdic-
tion. The Magistrate passed an order that the decision on
the question of jurisdiction must await the recording of
evidence on the whole case. The respondent did not chal-
lenge that order. Ultimately the Magistrate held that he had
the jurisdiction to entertain the application and decided
it on the merits. The Sessions Judge referred the respond-
ent’s revision application to the High Court. The High
Court heard that by taking recourse to s. 531, proceedings
could not be entertained in a Court which had no jurisdic-
tion--more so when an objection had been taken against its
maintainability--and that s. 531 could cure the infirmity
only if the case had been fought on merits.
Allowing the appeal,
HELD: The High Court erred in taking the view that s.
531 would not be applicable to this case merely because the
objection as to the jurisdiction was raised by the respond-
ent right at the first instance. [1003 F]
1. (a) Territorial jurisdiction is provided as a matter
of convenience for the Court, the accused and the witnesses.
Under s. 488(8) a proceeding may be taken against any person
m any district where he resides or is or where he last
resided with his wife. [1001 F-G]
(b) Where a Magistrate has the power to try a particular
application under s. 488 and the controversy relates solely
to his territorial jurisdiction, there should, Ordinari-
ly, be no reason why s. 531 should not be applicable to the
order made by him. [1001 H]
(c) The true meaning_of s. 531 is that while it will not
uphold an order passed in proceedings wilfully taken in a
wrong place, or enable a Magistrate to confer jurisdiction
on himself when he knows that he has no such jurisdiction,
there is no reason why a Magistrate, who is otherwise duly
empowered to make an order under s. 488(1), cannot proceed
with an application under that subsection for the purpose of
deciding whether he has the territorial jurisdiction to
entertain the application and to decide the application on
the merits if he fin-ds that he has the territorial juris-
diction. Section 531 cannot be said to be in-applicable to
a case where there is a controversy as to the district where
the proceeding should be held, the parties lead evidence in
support of their respective contentions about the correct
place of the proceeding, and the Magistrate finds it neces-
sary (after taking note of the entire evidence on the con-
troversy) to arrive at a decision on the basis of the bal-
ance of probabilities. There is no reason why, in such a
case, s. 531 should not be applicable merely because the
Magistrate, while considering the evidence relating to
jurisdiction, unwittingly
998
makes a reference to s. 531 in passing and not for the
purpose of assuming jurisdiction under it If the Magistrate
in this case, had thought of assuming jurisdiction under s.
531, he would not have proceeded to record the evidence of
the parties, on the question of the territorial jurisdic-
tion, or referred to it at length in his order and arrived
at the decision that he had the jurisdiction. [1002 D-G]
Purushottamdas Dalmia v. The State of West Bengal [1962]
2 S.C.R. 101 followed.
Radharani v. Rahim Sardar. A.I.R. 1.946 Calcutta 459.
Sakuntala v. Thirumalyya [1966] 2 M.L.J. 326, State v.
Tavara Naika A.I.R. 1959 Mysore 193, Sultan Chand v. Yogin-
dra Nath Baz. A.I.R. 1944. Peshawar 25 and Satwant Singh v.
Smt. Jaswant Kaur, [1956] A.L.J. 134, held inapplicable.
In the instant case, the Magistrate was one of the
Magistrates mentioned in s. 488( 1 ). He had specifically
rejected the respondent’s application for confirming the
evidence to the question of jurisdiction or to try that as a
preliminary issue. It cannot therefore be said that he had
given himself jurisdiction by recourse to s. 531. The
Magistrate had set out the point that arose for considera-
tion, discussed the entire evidence and taken into consider-
ation the conduct of the respondent--all of which led to the
conclusion that he had the jurisdiction to try the applica-
tion. There is therefore no reason why s. 531 should not be
held to be applicable to this case. [1005F-H]
(d) The High Court erred in holding that s. 531 would
not be applicable because the respondent had reserved a
right to file a written reply on merits after the question
of jurisdiction had been decided. The Magistrate had spe-
cifically overruled the respondent’s objection, and directed
the parties to adduce evidence, and deferred the decision on
the question of jurisdiction until after the evidence had
been recorded. The respondent did not file his reply on
the merits. [1003G-H]
(e) The High Court erred in holding that there was
failure of justice because the respondent never led evi-
dence. The Magistrate called upon the parties to lead
evidence. While the appellant obeyed the order, the re-
spondent persisted in thinking that the Magistrate had no
jurisdiction, refused to examine his witnesses on merits,
and chose to confine his evidence to the question of juris-
diction. [lOO4F-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Criminal Appeal No. 447 of
1974.
(Appeal by Special Leave from the Judgment and Order
dated the 14th March 1974 of the Delhi High Court in Crimi-
nal Revision Petition No. 61 of 1974.
Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appel-
lant.
V.C. Mahajan and S.L.Aneja, for respondent.
The Judgment of the Court was delivered by
SHINGHAL, J.--This appeal by special leave is directed
against the judgment of the Delhi High Court dated March 14,
1974, allowing the revision application of. respondent Dev
Raj Vijh and ’dismissing the appellant’s application dated
March 18, 1969, under section 488 of the Code of Criminal
Procedure, 1898, hereinafter referred to as the Code.
Appellant Raj Kumari Vijh was married ’to respondent Dev
Raj Vijh in Delhi, in June 195’0. It is the admitted case
of the parties that they were living separately from 1953.
The appellant filed her
999
first application for maintenance under section 488 of the
Code, in 1955, but it was dismissed. The respondent filed
an application for divorce, or judicial separation, in 1956
in Aligarh (Uttar Pradesh). It was ultimately dismissed on
appeal on March 29, 1968. In the meantime the appellant
filed a suit against the respondent for recovery of her
"stridhen" in Delhi in 1956. It was decreed on appeal by
the Delhi High Court in 1967, for Rs. 6,458/-. The appel-
lant gave a notice to the respondent on June 24, 1968,
claiming maintenance as a ’deserted wife. Nothing came out
of it and she filed the present application under section
488 of the Code in the .Court of the Delhi Magistrate on
March 18, 1969. It was stated in the application that the
appellant had lived with the respondent in Delhi and Aligarh
as his legally wedded wife, and thereafter at village
Lampur, P.S. Narela, Delhi, towards the end of December
1968, because the respondent visited her there for a settle-
ment and for non-execution of the decree which she had
obtained for Rs. 6,458/- on account of her "stridhan". It
was stated in the application that the parties lived at
Lampur, as husband and wife and there was cohabitation. The
appellant prayed for an order allowing her Rs. 450/- per
month for maintenance’ as the respondent had sufficient
means but had neglected or refused to maintain her.
The respondent filed a reply on April 29, 1969 in which,
according to the Magistrate, there was no specific denial of
the averment that the parties last resided together at
Lampur. An objection was however taken that as the earlier
application was dismissed on February 2, 1956, the second
application was barred on the principle of res judicata. An
objection was taken to the jurisdiction of the Delhi Court
on the ground that the respondent never resided, permanently
or temporarily in Delhi. We have not found it possible to
go through the reply because it has been stated by counsel
for the parties that the original record has been destroyed.
The Magistrate passed an order for production of evidence.
The respondent thereupon prayed that the question of juris-
diction may be decided before recording the evidence. That
was not agreed to by the magistrate. He made an order on
November 19, 1969 that the question of jurisdiction must
await the recording of the evidence on the whole case. The
respondent did not challenge that order or apply for permis-
sion to file additional reply. On the other hand, he asked
for the holding of an identification parade for the purpose
of showing that some of the appellant’s witnesses did not
even know him. Both the parties led their evidence, al-
though it appears that the respondent did not like to avail
of the opportunity which was given to him to lead evidence
on the merits. He did not even apply for permission to file
any ,additional reply when the Magistrate recorded the
appellant’s evidence on her application for maintenance as a
whole.
Ultimately the Magistrate made his final order on May
21, 1973. He took the view that there was no specific denial
of the appellant’s allegation that the parties last resided
together, as husband and wife, in village Lampur, in Delhi,
towards the end of December in 1968.
1000
He took notice of the fact that the plea of bar against the
maintainability of the second application because of the
dismissal of the first application, was not pressed by the
respondent and after referring to the entire evidence in
details, he reached the conclusion that he had the jurisdic-
tion to entertain the application, and granted maintenance
allowance at the rate of Rs. 125/- per month, with effect
from March 18, 1969, along with an order regarding the mode
of payment of the arrears. The respondent applied for a
revision of that order, and the Additional Sessions Judge
referred the case, to the High Court on November 30, 1973,
for dismissal of the application (under section 488 of the
Code) on the ground that the Delhi Magistrate had no juris-
diction to entertain it. As the High Court has allowed
the reference, and dismissed the revision application which
was filed by the appellant for an increase in the mainte-
nance allowance, the appellant has come up to this Court by
special leave.
In its impugned judgment dated March 14, 1974, the High
Court has recorded the finding that the parties did not
reside together at village Lampur, and for that reason it
took the view that the Delhi Court had no jurisdiction to
entertain the appellant’s application under section 488 of
the .Code. Counsel for the appellant has vehemently urged
that the finding of the High Court is incorrect, but as it
is a finding of fact, we shall proceed on the assumption
that does not call for interference in this appeal. The
question however remains whether section 531 of the Code
would be applicable to the case? The High Court has held
that the section would not be applicable, and that is why it
has passed the impugned order for the dismissal of the
application of the appellant under section 488 of the Code.
The High Court has taken that view for the following reasons
,--
(i) The objection as to jurisdiction was
raised "right at the first instance by the
husband".
(ii) The respondent "specifically reserved
his right to file a written reply on merits
after the question of jurisdiction was decid-
ed".
(iii) As the respondent had "reserved his
right to lead evidence on merits, it is not a
case where the husband deliberately gave up
his right to lead evidence on merits .....
"
(iv) There was "obvious prejudice and failure
of justice" the respondent as he never led
evidence on the merits.
(v) It was necessary for the appellant to.
prove that the respondent had refused and
neglected to maintain her, and that "obviously
requires an opportunity to be given to the
husband to prove his case,, if it be one, that
he has not refused or refuses or neglected to
maintain his wife or what his income and means
is".
1001
(vi) "Before a decision on merits can be
given the husband has the undoubted request
(sic) to lead evidence on merits".
(vii) A proceeding cannot be entertained in
a court which has jurisdiction by simply
taking recourse to section 531 of the Code,
when an objection has been taken against main-
tainability, for otherwise the provision
relating to jurisdiction would become nuga-
tory. Section 531 "can cure the infirmity
after the case has been fought on merits."
We have examined these grounds, but we are
constrained to say that they are not tenable
in the facts and circumstances of this case.
Section 531 of the Code reads an follows,--
"531. No finding, sentence or order of
any Criminal Court shah be set aside merely
on the ground that the inquiry, trial or other
proceeding 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."
The section therefore relates to a defect of jurisdiction.
As has been stated by this Court in Purushottamdas Dalmia v.
The State of West Bengal(1) those are two types of jurisdic-
tion of a criminal court, namely, (1) the jurisdiction with
respect to the power of the court to try particular kinds of
offences, and (2) its territorial jurisdiction. While the
former goes to the root of the matter and any transgression
of it makes the entire trial voild, the latter is not of a
peremptory character and is curable under section 531 of the
Code. Territorial jurisdiction is provided "just as 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 who will have to meet
the charge levelled against him and the convenience of the
witnesses who have to appear before the Court’. Sub-section
(8) of section 488 in fact provides that proceedings under
the section "may be taken against any person in any district
where he resides or is, or where he last resided with his
wife or, as the case may be, the mother of the illegitimate
child." This therefore is ordinarily the requirement as to
the fling of an application under section 488 within the
limits of the jurisdiction of the magistrate concerned.
So where a magistrate has the "power’ to try a particu-
lar. application under section 488, and the controversy
relates solely to his territorial jurisdiction, there
should, ordinarily, be no reason why section 5 31 of the
Code should not be applicable to the order made by him. It
has therefore to be examined whether there were any such
circumstances in this case for which the High Court could
justifiably refuse to apply the provisions of section 531.
(1) [1962] 2 SCR. 101.
1002
The first reason why the High Court .has not given the
benefit of section 531 to the appellant is that an objection
as to the jurisdiction of the Delhi Court was raised by the
respondent "right at the first instance." Counsel for the
respondent has strenuously argued that such. a benefit will
not be available in a case where the magistrate knew that he
had no jurisdiction, and persisted in proceeding with the
trial under the, impression that section 531 of the Code,
would, at any rate, validate his order. That, according to
the counsel, amounted to an order by the magistrate giving
the jurisdiction to himself by virtue of section 531.
Reliance in this connection has been placed on Radharani v.
Rahim Sardar(1), Sakuntala v. Thirumalayya(2), State v.
Tavara Naika(3), Sultan Chand v. Yogindra Nath Bar (4), and
Satwant Singh v. Smt. jaswant Kaur (5).
As is apparent, section 531 does not entitle a magis-
trate, who is not a magistrate of the class referred to in
sub-section (1) of section 488, to proceed with an applica-
tion for maintenance. In fact even a District Magistrate, a
Sub-Divisional Magistrate or a Magistrate of the first class
will not be entitled to proceed with such an application if
he knows that the proceedings do not fall within his juris-
diction under sub-section (8) of section 488. The true
meaning of section 531 is that while it will not uphold an
order passed in proceedings wilfully taken in a wrong place,
or enable a magistrate to confer jurisdiction on himself
when he knows that he has no such jurisdiction, there is no
reason why a magistrate, who is otherwise duly empowered to
make an order under sub-section (1 ) of section 488 of the
Code, cannot proceed with an application under that subsec-
tion for the purpose of deciding whether he has the territo-
rial jurisdiction to entertain the application and to decide
the application on the merits if he finds that he has the
territorial jurisdiction. Section 531 cannot thus be said to
be inapplicable to a case where there is a controversy as
to the district where the proceeding should be held, the
parties lead evidence in support of their respective
contention about the correct place of the pro-
ceeding, and the magistrate finds it necessary (after taking
note of the entire evidence on the controversy) to arrive at
a decision on the basis of the balance of probabilities. In
other words, there is no reason why, in such a case, section
531 should not be applicable merely because the magistrate,
while considering the evidence relating to jurisdiction,
unwittingly makes a reference to section 531 in passing and
not for the purpose of assuming jurisdiction under it. If
the magistrate,in this case, had thought of assuming juris-
diction under section 531, he would not have proceeded to
record the evidence of the parties, on the question of the
territorial jurisdiction, or referred to it at length in his
order and arrived at the decision that he had the jurisdic-
tion.
We have gone through the cases which have been cited by
the counsel for the respondent. Radharani and another v.
Rahim Sardar (supra) was a case where the magistrate pro-
ceeded with the trial
(1) A.I.R. 1946 Calcutta 459. (2) (1966) 2 M.L.J. 326.
(3) A.I.R. 1959 Mysore 193. (4) A.I.R. 1944 Peshawar 25.
(5) (1956) A.L.J. 134.
1003
in the wrong local area with his eyes open to the fact that
he had no territorial jurisdiction, and the Calcutta High
Court had to observe that the section does not confer any
jurisdiction. This is however not so in the present case,
because the Magistrate recorded the evidence on the question
of territorial jurisdiction, and he went to the extent of
making ’a reference to the entire evidence which was led on
the point. Moreover he took note of the fact that the re-
spondent had not specifically dened that he lived at village
Lampur with the appellant. This is therefore not a case
where the Magistrate proceeded with the application even
though he had the knowledge that it did not fail within his
jurisdiction. The same is the position in regard to
Sakunlala v. Thirumalayya (supra) and it also cannot avail
the respondent. We have gone through State v. Tavara Naika
(supra). It was not a case under section 488 of the Code.
What has been said there is that the curative provisions of
section 531 should not be an excuse for overlooking a mate-
rial irregularity pertaining to jurisdiction when it is
brought to the notice of the Court before the commencement
of the trial. It does not therefore lay down anything
different from what has been stated in Radharani v. Rahim
Sardar (supra). It was a case where the accused was commit-
ted to a wrong sessions division, and the mistake was cor-
rected because the trial had not commenced. Sultan Chand &
another v. Yogindra Nath Baz (supra) was also not a case
under section 488 of the Code. It has been held in that
case that when the question of jurisdiction has been raised
before the trial magistrate, it is his duty to determine the
point, otherwise the provisions ’as regards jurisdiction
would never be enforced and that section 531 cannot be
applied to such a case. As has been stated, the Magistrate
in the present case addressed himself to the question of
jurisdiction, recorded detailed evidence on it, considered
the evidence in his order and reached the conclusion that
the application was maintainable in his court. This is
therefore a different case. Satwant Singh v. Smt. Jaswant
Kaur (supra) was a case under section 488 of the Code. It
has been held there that where the question of jurisdiction
had been raised before the trial magistrate, it wa.s his
duty to determine the point, and that he cannot proceed with
the trial in a wrong local area with his eyes open to the
fact that he has no territorial jurisdiction. As has been
shown, this was not so in the present case. It would thus
appear that the High Court erred in taking the view that
section 531 would not be applicable to this case merely
because an objection as to jurisdiction was raised by the
respondent "right at the first instance."
The second ground mentioned by the High Court is that
section 531 would not be applicable because the respondent
had specifically reserved his right to file a written reply
on merits after the question of jurisdiction had been decid-
ed,. We find that this is clearly a misstatement of the
facts, for counsel for the respondent was not able to refer
to anything on the record to show that the respondent re-
served any such right to file a written reply on the merits
at a later stage, after the question of jurisdiction was
decided against him. On the other hand, we find that the
Magistrate specifically overruled the objection of the
respondent, and made an order directing the parties adduce
their evidence on the whole case and specifically rejected
16--206SCI/77
1004
the respondent’s application for deciding the question of
jurisdiction in the first instance. The Magistrate has
clearly stated that an order was made. by him for the pro-
duction of evidence "in the case", and that he decided to
defer a decision of the question of jurisdiction until
after the evidence had been recorded as a whole. The Magis-
trate has further stated that the respondent did not file
his further or additional reply even then. The High Court
therefore undoubtedly erred in thinking that the respondent
specifically reserved his right to file a written reply on
the merits later on. As has been shown, no such reservation
was permitted by the magistrate, and counsel for the re-
spondent was not able to show how the respondent could
unilaterally make such a reservation for himself. It may be
that, in a given case, it may be advisable for a magistrate
to confine the evidence of the parties, in the first in-
stance, to any preliminary objection relating to jurisdic-
tion, and to decide the controversy on the merits thereaf-
ter, but as this was not so in the present case, we arc
unable to find any justification for the second ground
mentioned. by the High Court.
The third ground of the High Court is also untenable,
for it has refused to apply section 531 on the ground of
prejudice for the reason that the respondent had reserved
his right to lead evidence on the merits and did not delib-
erately give up that right. ’Here again, counsel for the
respondent was unable to show how it could be said that the
respondent made any such reservation, or was entitled to it
when, as has been stated, the Magistrate had rejected his
application for deciding the question of jurisdiction as a
preliminary question and had passed an ,order for the pro-
duction of all the evidence in the case. If therefore the
respondent persisted in refusing to produce his evidence in
spite of that order of the Magistrate, he alone was to blame
for it, and the High Court erred in taking the view that he
had reserved the right to lead evidence at a later stage.
The High Court has taken the view that this is a case
where there was obvious prejudice to the respondent and a
failure of justice as he never led evidence on the merits.
But the High Court failed to appreciate that the respondent
had to thank himself for that predicament. He knew that the
Magistrate had passed an order refusing to try the question
of jurisdiction in the first instance and had rejected his
application to that effect. He also knew that the Magis-
trate had called upon the parties to lead all their evi-
dence. The appellant obeyed that order and examined her
witnesses. The respondent persisted in thinking that the
Magistrate had no jurisdiction, and he refused to examine
the witnesses on the merits and thought it sufficient to
confine his evidence to the question of jurisdiction. So.
if he deliberately refrained from producing his evidence on
the merits, there can be no justification for him to raise
the question of prejudice or failure of justice. As it is,
Counsel for the respondent has not been able to refer to any
application of the respondent. whether oral or documentary,
expressing a desire to lead his evidence on the merits.
The fact of the matter therefore is that the respondent had
decided that he would not lead any evidence on the merits,
and confined his evidence to the question of jurisdiction.
It may be that, as
1005
has been argued by the Counsel for the appellant, he did so
because he realised that he had no defence to make on the
merits of the claim for maintenance.
The fifth ground mentioned by the High Court is that
before an order could be passed under section 488(1) it
was necessary to prove that the husband had refused or
neglected to maintain his wife, and that required an oppor-
tunity to be given to the husband to prove, his case. But
the argument is futile because the respondent did not set up
any defence on the merits. On the other hand, the Magis-
trate. found that there was no controversy about the facts
that the appellant was the lawfully wedded wife of the
respondent and that she had been living separately for the
last many years and was entitled to maintenance as the
respondent had neglected her or had refused to maintain her.
In its sixth ground the High Court has stated that
before a decision could be given on the merits, the husband
could make a request for permission to lead evidence on
merits. It would be sufficient to say that Counsel for the
respondent was unable to point out when and how any such
request was made but was refused by the Magistrate.
Lastly, the High Court has taken the view that a pro-
ceeding cannot be maintained by a court which has no juris-
diction by simply taking recourse to section 531 of the Code
when an objection has been taken against its maintenance,
for otherwise the provision relating to jurisdiction would
become nugatory. This point has already been considered
earlier and need not be re-examined.
It is thus quite clear that the High Court committed a
serious error of law in refusing to. invoke section 531 in
the facts and circumstances of this case. It is not in
controversy that the Magistrate who took the proceedings, on
the appellant’s application under subsection (1) of section
488, was one of the magistrates mentioned in that sub-sec-
tion. The respondent raised a controversy as to his local
jurisdiction, and the Magistrate ordered the parties to lead
all their evidence. He specifically rejected the applica-
tion for confining the evidence to the question of jurisdic-
tion, or to try that as a preliminary issue. It is there-
fore futile to contend that the Magistrate gave himself
jurisdiction by recourse to section 531 of the Code. On
the other hand in his final order, he set out the points
which arose for consideration on the question of jurisdic-
tion, made a mention, at length, of the entire evidence on
that question and took into consideration the conduct of the
respondent and the ease law as well as the respondent’s
reply. All that led him to the conclusion that he had
jurisdiction to try the application. There is therefore no
reason why section 531 should not be held to be applicable
to this case. As has been shown, it is futile for Counsel
for the respondent to raise the question of prejudice, or
to say that there was a failure of justice, because the
respondent did not lend his evidence on the merits. As we
have pointed out, he did So deliberately and in
1006
defiance of the order of the Magistrate calling upon him to
lead his evidence on the whole case. The respondent cannot
in fact be heard to raise the question of prejudice when on
the uncontroverted and well established facts the Magistrate
found that the respondent was a person who had sufficient
means and had neglected to maintain his wife, and made an
order that he shall make a monthly allowance of Rs. 125/-
per mensem for her maintenance.
The appeal is allowed and the impugned order of the High
Court dated March 14, 1974, is set aside, with costs.
P.B.R. Appeal allowed.
1007