JUDGMENT Amitava Lala, J.
1. This writ petition has been filed by the petitioners for the purpose of obtaining the following reliefs:
i. issue a writ, order or direction in the nature of certiorari quashing the FIR in Case No. 381 dated 18.10.2004 G.R. No. 2711/04 under Section 120B, 420, 406, 465, 468, 471 I.P.C., P.S. Shakespeare Sarani, Kolkata & orders dated 15.10.2004 & 11.2.2005 passed by respondent No. 5;
ii. issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners on the basis of the FIR dated 18.10.2004;
iii. issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 to transfer the Case No. 381 under Section 120B, 420, 406, 465, 468, 471 IPC to State of U.P.;
iv. issue any other writ, order or direction which the Hon'ble Court may deem fit and proper in the circumstances of the present case.
v. Award costs to the petitioners from the contesting respondents.
2. Parties have exchanged their respective affidavits and the matter was heard on such basis.
3. Apart from the issues, which are normally available within the aforesaid jurisdiction, a further question of transfer of case crime from the State of West Bengal to State of Uttar Pradesh is involved for adjudication. The complainant is the main contesting respondent herein. The case of the petitioners is that a complaint has been lodged in Kolkata in connection with misappropriation of fund of the company of the complainant in various places of Uttar Pradesh including Kanpur, place of the petitioners. We have gone through the first information report lodged on 18th October, 2005 on the basis of an application under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.') made by Office Manager of a Kolkata based company i.e. M/s. PKS Limited for causing investigation by the Officer Incharge, Police Station Shakespeare Sarani, Kolkata. It is alleged that the petitioner/s filed application for anticipatory bail therein, which was rejected. From the writ petition two important points arose i.e.-
a) Where the first information report can be filed?
b) Which Court can take cognizance of the matter?
4. Paragraphs-18 and 19 of the application under Section 156(3) Cr.P.C. are as follows:
18. Thus the accused persons in collusion and connivance with each other committed forgery, cheating, criminal breach of trust, dishonest, misappropriation etc. and are liable to be prosecuted under Section 120B/420/406/465/467/468/471 I.P.C. of the Indian Penal Code.
19. That this Ld. Court has got jurisdiction to try this case as the representation by accused No. 2 was made within the jurisdiction of this Ld. Court and the accused persons were to account for at this office of the complainant's company which is also within the jurisdiction of this Id. Court.
5. Before these paragraphs no where it is stated which part of the offence committed within the local jurisdiction of Kolkata or any where within the State of West Bengal.
6. The case of the complainant is that the company exports various edible items and other items of overseas markets, mainly in Bangladesh, after procuring such items from various parts in India under the permission of Ministry of Commerce, Government of India. The complainant's company, namely, M/s PKS Limited having its office at 7, Camac Street, Azimgunj House, 4th Floor, Kolkata-700017, is an associate exporter of State Trading Corporation of India. The company of the accused, namely, M/s Hanuman Prasad Ojha has its office at 74/31, SBI Building, (3rd Floor), Room No. 1, Collectorganj, Kanpur-208001, Uttar Pradesh. It is working as commission and canvassing agent for procurement of export goods and to make arrangements for railway rakes and to do various other allied works relating to export. The petitioner No. 1 is the key-man and others are working under his direction. On the basis of the understanding amongst the petitioners and the complainant, the petitioner No. 1 was engaged for arranging railway rakes at different railway stations in Uttar Pradesh, i.e. Hardoi, Kasi Kalan, Mathura, Jamuna Bridge, Ghazipur, Gond, Iradatganj, Varanasi, Oral, Jhansi, Lalitpur, Bilaspur Road, Biswan, Gorakhpur, Kanpur, Etawah, Jainpur, Shahjahanpur, Lucknow and places of different States i.e. Rajasthan, Uttaranchal, Madhya Pradesh, etc. For the purpose of allotment of railway rakes party concerned shall have to pay the indent money for registration of rakes etc., whereas, rake is to be allotted on the basis of the quota from the Railway Headquarters. The indenter is free to withdraw the indent money after 10 days from the date of indenting without any liability. As per the first information report, the petitioner No. 1 in collusion and connivance with the other petitioners made criminal conspiracy to cheat the complainant's company and dishonestly misappropriated huge sum by making forged and false documents of the company.
7. Now, the question is where such misappropriation was done? It was done in Iradatganj, Hardoi, Jhansi, or any other place in Uttar Pradesh. The paragraph-16 of the complaint under Section 156(3) Cr.P.C. (possibly similar paragraph of the first information report) is as follows:
16. On 12.10.2004 at about 3.30 p.m. while the employee of your petitioner's company viz Subodh Singh and Surajit Thafadar were engaged at Kanpur Railway Goods Station for the purpose of placing indent for rakes for loading and export of food grams, the Accused Nos. 3, 5 and 7 along with 5/6 uknown musclemen assaulted both the employees of your petitioner's company with fists and blows and forcibly dictated Sri Subodh Singh employee of your petitioner's company to write letter according to their dictation under threat and coerce. Otherwise they will cause badly harm to them. Out of fear Sri Subodh Singh, the employee of your petitioner's company was compelled to write such letter as was dictated by the aforesaid accused persons, which was not fact at all. No copy of the said letter was handed over him. To this effect a letter of complaint was sent to Shakespeare Sarani Police Station, who acknowledge it on 13.10.04 a copy of which is annexed hereto and marked 'H'.
8. Therefore, a question arose before this Court that where the offence was committed. If the offence of misappropriation forcibly or fraudulently has been done in a particular place of Uttar Pradesh then obviously cause of action said to be arose there but not at Kolkata in the State of West Bengal.
9. In our little experience we have seen that in the rarest of rare cases, the learned Magistrates apply their mind in passing any order under Section 156(3) Cr.P.C.. They are augustan with the routine order. Therefore, it can not be expected that the learned Magistrate has applied his mind regarding jurisdiction before passing any order to lodge the F.I.R. there in Kolkata. Had it been so, dispute should have been resolved long back.
10. Petitioners made two sets of arguments. One is in connection with the jurisdiction and another is in connection with the forum selection. However, before going into such controversy, let us know what are the subjective sections hereunder apart from the procedural sections made for punishment. It is to be remembered that subjective sections will give the ingredients of mens rea for the purpose of invocation of jurisdiction. Subjective section is Section 420 of the Indian Penal Code (hereinafter referred to as "I.P.C."), which is made for cheating and dishonestly inducing delivery of property. Another two subjective sections are Sections 468 and 471 I.P.C. First one is made for forgery for the purpose of cheating, and second is for using as genuine a forged. Therefore, in all, the case of the complainant is that by making a forgery the petitioners have cheated the complainant's company and dishonestly induced delivery of property. Therefore, definitely the same has not occurred in Kolkata, where the first information report was lodged, but occurred at the places in Uttar Pradesh, where it was allegedly caused. Under such circumstances, the Supreme Court says in (Navinchandra N. Majithia v. State of Maharashtra and Ors.), as follows:
So far as the question of territorial jurisdiction with reference to a criminal offence is concerned the main factor to be considered is the place where the alleged offence was committed.
11. The Supreme Court categorised two aspects of the matter in such judgment. One is in respect of the territorial jurisdiction of the High Court and another is applicability of Article 226(2) of the Constitution of India within a State without having an appropriate seat of the Government or authority or residence of the person, against whom direction, order or writ is sought to be issued. Two important aspects of the judgment are as follows:
The mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor can it be said that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case.
In the present case, a large number of events have taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong. If the averments in the writ petition are correct then the major portion of the facts which led to the registering of the FIR have taken place at Bombay. Therefore, it is almost impossible to hold that not even a part of cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that a major portion of the investigation of the case under the FIR has to be conducted at Bombay itself, shows that the cause of action cannot escape from the territorial limits of the Bombay High Court.
12. The provision of Article 226(2) of the Constitution of India is as follows:
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.
13. The Supreme Court says that from the provision of Clause (2) of Article 226 of the Constitution it is clear that the maintainability or otherwise of the writ petition in the High Court depends upon whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court. In legal parlance the expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or tribunal; a group of operative facts giving rise to one or more bases for suing; factual situation that entitles one person to obtain a remedy in court from other persons.
14. In (Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr.) the Supreme Court held that Section 177 Cr.P.C. deals with the ordinary place of inquiry and trial. Section 177 Cr.P.C. reads as follows:
Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
Section 178 Cr.P.C. speaks as follows:
178. Place of inquiry or trial.-- (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
15. The Supreme Court held that while in civil cases normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is, therefore, not a stranger to the criminal cases.
16. In (Union of India and Ors. v. Adani Exports Ltd. and Anr.) it was held that each and every fact pleaded by the respondent/s in his/their application/s does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts are such which have a nexus or relevance with the lis that is involved in the case. Facts, which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. In (Bijoyanand Patnaik v. Mrs. K.A.A. Brinnand) the High Court held that in case of complaint under Section 406 I.P.C. where neither the entrustment nor conversion has taken place within the territorial jurisdiction of the Court, where the complaint is lodged, the Court has no jurisdiction and the proceedings instituted there are bad in law and without jurisdiction. In (State v. Gulabchand Swarupchand and Ors.) it was held that if the complaint does not disclose any offence to criminal breach of trust in a place, such Court has no jurisdiction to proceed with the complaint. There was no contractual relationship between the complainant and the accused and no legal liability to render accounts by the accused to the complainant.
17. In (S.W. Palanitkar and Ors. v. State of Bihar and Anr.) the Supreme Court said that the ingredients in order to constitute a criminal breach of trust are as follows:
(i) entrusting a person with property or with any dominion over property, (ii) that person entrusted-
(a) dishonestly misappropriating or converting that property for his own use; or
(b) dishonestly using or disposing of that property or wilfully suffering any person so to do in violation,
(i) of any direction of law prescribing the mode in which such trust is to be discharged; or
(ii) of any legal contract made, touching the discharge of such trust.
18. The ingredients of an offence of cheating are (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he was not so deceived; (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
19. According to us, cause of action in case of the contract, can arise in any of the following places:
(i) Where contract was executed;
(ii) Where performance was made; and
(iii) Where consideration is payable or paid.
20. But dispute is not the cause of action. It is ingredient of the cause of action for the purpose of immediate action. Therefore, the alleged offence either in the nature of misappropriation of fund or criminal breach of trust is a dispute under the criminal terminology. Such dispute gives the cause of action for immediate action in a particular place. In the instant case, as per the arrangement, indent is to be filed by the petitioners on behalf of the complainant's company for the purpose of allotment of railway rakes. The same was made in Uttar Pradesh for delivery of goods. According to the complainant, accused persons collected the indent money from the railway authorities by producing forged authorisation letters and by such way misappropriated the fund. Such offence is forming the dispute to invoke the appropriate jurisdiction. The complainant avoided the jurisdiction and filed the application under Section 156(3) Cr.P.C. followed by F.I.R. in Kolkata, where no offence was allegedly committed by the petitioners.
21. Learned Senior Counsel appearing for the contesting respondent contended that by virtue of Section 181(4) Cr.P.C. the cause of action arose at Kolkata. The petitioners are required to be accounted for at Kolkata. Section 181 Cr.P.C. speaks about the place of trial in case of certain offences. Sub-section 4 of Section 181 Cr.P.C. is quoted hereunder:
Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
22. According to us, law should not be read in piecemeal manner but as a whole. Many other sections as discussed above have their force to make a sense of jurisdiction. Jurisdiction is static when falling in the jurisdiction is variable. The particular sub-section, as above, has two parts as follows:
(a) offence may be inquired into or tried by a Court within whose local jurisdiction the offence was committed;
or
(b) offence may be inquired into or tried by a Court within whose local jurisdiction any part of the property which is the subject of the offence was received or retained or required to be returned or accounted for;
or
(c) both.
23. According to us, both the parts are disjunctive from each other. It can be conjunctive when both the situations are available. None of the stages under part (b) arose as yet to say about 'accounted for'. Therefore, that can not be the ingredient for the present dispute i.e. the offence under criminal terminology. There is a thinner line in between breach of trust and criminal breach of trust. But those are so intermingled legislature has provided wide corpus. The criminal breach of trust is complete where it was occurred. It is not dependable upon the consequential effect under Section 179 Cr.P.C. It was held by the Full Bench of Bombay High Court in AIR 1930 Bomb. 490 (F.B.) (In re: Jivandas Savchand) that pecuniary loss of one is not the essence of the offence of criminal breach of trust. The loss may or may not occur. Section 179 Cr.P.C. speaks about consequence of the offence and not some collateral by-product of the offence. Factually it was held therein as follows:
That the offence of criminal breach of trust was completed in Rangoon and that the obligation of accused No. 1 to render accounts in Bombay and to send the accounts to Bombay did not give the Bombay Court jurisdiction to try the offence.
24. Therefore, our observation is crystallised to the interference that mere submission of 'accounted for' in Kolkata can not give any jurisdiction therein.
25. Now let us consider two other points. When we are hearing the disputes of civil nature, we try to find out the place which would be the appropriate forum for adjudication amongst more than one. Such principle is called forum selection. Parties by agreement can not confer upon a jurisdiction unless it posses partially. At the time of forum selection we choose a place amongst one or more on various factors relevant for the purpose. Similarly, in criminal cases necessity of police investigation by the police of the local jurisdiction, where the offence is committed, is desirably a better forum for the purpose. If it is not filed in that place, obviously the first information report can be transmitted from the present local police station to the appropriate police station where the offence was committed following the ratio of 1999 SCC (Cri) 1503 [Satvinder Kaur v. State (Govt of NCT of Delhi) and Anr.]. However, we are of the view that the concerned F.I.R. should not be interfered with in the present case, particularly on the basis of the guidelines as framed by the Supreme Court in (State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.) and on its prima facie value. It can be applicable only in the rarest of the rare cases. This is not such a situation. That apart, in 2004 SCC (Cri) 353 (State of M.P. v. Awadh Kishore Gupta and Ors.) the Court held that in a case where investigation is not complete, complaint should not be quashed in the light of probabilities. It is significant to note that such order was passed in an appeal from an order under Section 482 Cr.P.C., which is much wider in power in this arena.
26. Therefore, in totality of the matter, we are of the view and accordingly direct that F.I.R. in Case No. 381 dated 18th October, 2004 G.R. No. 2711/04 under Section 120B, 420, 406, 465, 468, 471 I.P.C., P.S. Shakespeare Sarani, Kolkata be transmitted to the appropriate Police Station of Uttar Pradesh through the Secretary Home, State of West Bengal and the Secretary, Home, State of Uttar Pradesh within a period of fortnight from the date of communication of this order. The concerned Investigating Officer will make all efforts to conclude the investigation preferably within a period of three months from the date of receipt of transmitted F.I.R.. The petitioners will not be arrested in respect of the said crime number till the submission of charge-sheet/final report, if any. The petitioners are directed to co-operate with the Investigating Officer in all possible manner. However, no order is passed in respect of quashing of the first information report.
27. The writ petition is, thus, disposed of. Interim order, if any, is merged with the final order.
28. However, no order is passed as to costs.