JUDGMENT Vinod Prasad, J.
1. M/s Goyal Agencies and his two partners Arun Kumar Goyal and Vinesh Kumar Goyal have invoked our extraordinary jurisdiction under Article 226 of the Constitution of India with the prayer to quash complaint No. 84 of 2006 M/s Videocon Industries Ltd, M/s Goyal Agencies, under Sections 415, 417, 418 and 420 IPC, pending in the court of City Munsif/Judicial Magistrate 1st Class, Sri Nagar (Jammu & Kashmir) vide annexure No. 4 to the writ petition by issuing writ, order or direction in the nature of certiorari. The ancillary prayer is to issue any other writ, order or direction, which deems fit and proper on the facts and circumstances of the case.
At the very outset at the time of admission the question which was mooted for our consideration by the contesting rival sides is as to whether this Court possesses territorial jurisdiction to quash the complaint, filed before City Munsif/Judicial Magistrate 1st Class, Sri Nagar (Jammu & Kashmir). Because of the above noted legal question we deferred the hearing of the petition on its merits and heard the rival contesting side only on the question of maintainability of the writ petition before us.
2. Sri Murlidhar, learned senior counsel for the petitioners armed with a Judgment of the Apex Court reported in 2000 (II) U.P. Criminal Ruling page 582 Navinchandra N. Maiithia v. State of Maharashtra and Ors. vehemently harangued that the present writ petition is maintainable in this Court. He further contended that the Apex Court in the aforesaid Judgment has laid down the law that every High Court has got a territorial jurisdiction to entertain a writ petition, if some part of cause of action has arisen within its territorial limits. Learned senior counsel for the petitioners placed much emphasis on paragraph 6 of the aforesaid Judgment wherein the Apex Court has observed thus:
Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an inquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.
2.1 Learned senior counsel for the petitioners further harangued that it will be a travesty of justice if an unscrupulous litigant is allowed to launch a malicious prosecution in any part of the country, whether or not any part of the incident has occurred there or not and if such a practice is allowed specially in the corporate world, the business will crumbled down eroding the very economic edifice of the country. Learned Counsel for the petitioners contended that it will be too hazardous a proposition to allow an unorthodox litigant to circumvent the provision of Sections 177 to 189 Cr.P.C. incorporated under Chapter XIII thereof relating to the jurisdiction of criminal courts in inquiry and trial and lodge a complaint outside the limits of those places where any part of cause of action had occurred. In the submission of learned senior counsel for the petitioners no part of cause of action nor any part of the incident occurred in state of Jammu & Kashmir within the territorial limits of Judicial Magistrate First Class Sri Nagar, Jammu & Kashmir and therefore, the wielding of power of the said Magistrate under Section 190 Cr.P.C. by the complainant is a vindictive exercise tainted with malafides. Learned senior counsel for the petitioners further placed reliance on paragraph 27 of the Judgment of Navinchandra N. Majithia v. State of Maharashtra and Ors. (supra) and contended that the present writ petition is maintainable before us. Paragraph 27 of the aforesaid Judgment is reproduced below:
Tested in the light of the principles laid down in the cases noted above the Judgment of the High Court under challenge is unsustainable. The High Court failed to consider all the relevant facts necessary to arrive at a proper decision on the question of maintainability of the writ petition, on the ground of lack of territorial jurisdiction. The Court based its decision on the sole consideration that the complainant had filed the complaint at Shillong in the State of Meghalaya and the petitioner had prayed for quashing the said complaint. The High Court did not also consider the alternative prayer made in the writ petition that a writ of mandamus be issued to the State of Meghalaya to transfer the investigation to Mumbai Police. The High Court also did not take note of the averments in the writ petition that filing of the complaint at Shillong was a malafide move on the part of the complainant to harass and pressurise the petitioners to reverse the transaction for transfer of shares. The relief sought in the writ petition may be one of the relevant criteria for consideration of the question but cannot be the sole consideration in the matter. On the averments made in the writ petition gist of which has been noted earlier it cannot be said that no part of the cause of action for filing the writ petition arose within the territorial jurisdiction of the Bombay High Court.
2.2 Learned AGA contrarily retorted the argument of the learned senior counsel for the petitioners and contended that the cause of action in the present case arose because of filing of the complaint before Judicial Magistrate, First Class, Sri Nagar, Jammu & Kashmir who has taken cognizance of the offences. Learned AGA contended that it is not the incident which is material for determining the cause of action. He contended that the totality of facts has to be looked into for determining whether a High Court has got a territorial jurisdiction or not to entertain a writ petition. He further contended that disputed question of facts cannot be allowed to scuttle a legitimate prosecution engineered by the complainant. According to his submission the complainant must get a chance to substantiate his allegations as to whether any part of the incident or cause of action accrued in State of Jammu & Kashmir or not? In his submission to nip the prosecution into bud at the very threshold of the filing of the complaint will not be an exercise proper for this Court to be undertaken as the judicial restrain demands that complainant should be allowed to establish his case at a proper trial. Learned AGA concludingly contended that from the averments made in the complaint it is very perceptible that the complaint filed at Jammu and Kashmir is maintainable and there is no malafidy on the part of the complainant to file the complaint there at Sri-Nagar as the averments made therein disclose commission of offence and therefore, this writ petition is bereft of merit and is not maintainable in this Court and the petitioners should be directed to seek remedy before the Jammu & Kashmir High Court.
3. We have heard and cogitated over the matter and have gone through the averments made in the complaint.
3.1 Before we dwell upon the contentions raised by the contesting rival sides we consider it appropriate to deal with a single most significant and uneschewable fact which has a direct bearing on the question of maintainability of this instant writ petition before us. Complaint which is under challenge has been filed before Judicial Magistrate 1st class, Srinagar, state of J. and K. What is important to note is neither Criminal Procedure Code 1973 nor Indian Penal Code 1860 applies to that state. State of Jammu and Kashmir has got different Cr.P.C. known as Jammu and Kashmir code of criminal Procedure. Similarly instead of Indian Penal Code 1860 it has Ranbir Penal Code. This is clear from Section 1 Cr.P.C. 1973 which reads thus:
Short title, extent and commencement- (1) This Act may be called the Code Of Criminal Procedure, 1973.
(2) It extends to the whole of India except the State of Jammu and Kashmir:
......................................................
Similarly in Indian Penal Code 1860 Section 1 provides thus:
1. Title and extent of operation of the Code- This Act shall be called the Indian Penal Code, and shall extend to the whole of India except the State of Jammu and Kashmir.
The twin secitions of two sibling codes leaves no room for doubt that State of J and K have different Penal Code and different code of Criminal Procedure. As mentioned above Ranbir Penal Code and Jammu and Kashmir Criminal Procedure Code are applicable there. This Court however is governed by the former two codes ie; Indian Penal Code 1860 and Code of Criminal Procedure 1973 and does not have any jurisdiction to entertain any application under the later codes applicable in the State of J and K because of the above two ouster of extent clauses. Further deliberation on this aspect of the matter will be only be academic and hence, for the sake of brevity, we eschew that exercise.
3.2 Adverting to the facts of the present case it to be noted that the complaint was filed before Judicial Magistrate 1st class, Sri Nagar under Ranbir Penal Code herein after referred to as (RPC). The question that immediately crops up is as to whether this Court can entertain any writ petition to quash the proceeding initiated under that Code RPC which does not extend to this court? The answer to the surfaced question is in negative as from both the angles (neither Ranbir Penal Code applies in Uttar Pradesh nor Indian Penal Code applies in State of Jammu and K) such an exercise will be void abinition and without jurisdiction. This High Court can entertain only such writ petitions which are purviewed with the ambit of those Laws, Rules, Regulations, and Orders etc. which are applicable in the State of Uttar Pradesh. Any law which does not apply here oust the legal as well as constitutional jurisdiction of this Court and hence this Court can not entertain any petition in any of it's jurisdiction regarding such a Law, Rule, Regulation, and Order etc. 3.3 Analysing from such an angle this writ petition with the prayer to quash criminal complaint filed under RPC before this Court is not maintainable because of the above reasons.
4. Further even according to the law laid down by the Apex Court in me case of Navinchandra N. Majithia (supra) it is perceptibly clear that a complaint can be lodged at any place where any part offence has occurred and High Court of that place can entertain a writ where any part of the cause of action has arisen. However, it is for the complainant to start the lis in a particular court and as an exception the parties to a lis can determine, through an agreement, the place of suing or the jurisdiction of the court who then will have the right to settle all the disputes between them and in that eventuality only that court will have the jurisdiction to entertain the disputes between the contracting sides. From the perusal of the complaint in the present writ petition, annexure No. 4, it is mentioned in paragraph 12 thereof as follows:
That the this Hon'ble courts has all the territorial Jurisdiction to try and entertain the present complaint of the complainant, as the complainant company has a business office at address particulars specifically mentioned at the title of the present complaint and which falls under the jurisdiction of this Hon'ble Court. It is imperative to mention here that it was also known to the accused persons that in the event of non payment of dues, adverse consequences would ensue all our the places where the complainant company has its branch offices. It is the admitted position that the accused persons have also subjected themselves to the jurisdiction of this Hon'ble Court for the purpose of the present complaint.
5. For our purposes at this stage without entering into the appreciation of the detailed facts we lay emphasis on the particular averments made in the complaint and that is "it is the admitted position that the accused persons have also subjected themselves to the jurisdiction of this Hon'ble Court for the purposes of the present complaint." The above averments on the face of it has to be taken to be correct because at the thresh hold of quashing of the complaint we have to accept the allegations levelled in the complaint to be true. We cannot make any roving inquiry into the averments made in the complaint nor can alter averments made therein. From such a point of view the words "accused persons have also subjective themselves to the jurisdiction of this Hon'ble Court...." clearly indicate that there is a contract between the petitioners and the complainant and by such an agreement they have conferred the rights to determine the dispute between them on Judicial Magistrate First Class, Srinagar, Jammu & Kashmir. Whether this agreement exists or not with incorporation of the said clause is a matter which is to be agitated and decided by the trial Court. Under Article 226 of the Constitution of India we are neither supposed to nor will undertake such an exercise.
Another important aspect of the matter is that the only prayer made in the writ petition is to quash the above mentioned complaint lodged by the complainant respondent No. 3. There is no other prayer. The said prayer is circumscribed within the above relief. This Court cannot quash the complaint pending before Judicial Magistrate, First Class, Srinagar, Jammu & Kashmir as our territorial jurisdiction does not extend upto that limit./
6. In view of what we have stated above, we are of the opinion that this writ petition is not maintainable before us. Hence, this writ petition stands dismissed for the above reasons.