RA] KUMARI VIJH versus DEV RAJ VIJH

Citation: [1977] 2 S.C.R. 997 · Decided: 15-02-1977 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

é
i
997
RA] KUMARI VIJH
V.
DEV RAJ VIJH
February 15, 1977
[P. N. BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.]
Code of Criminal Procedure.
1898—-—Ss. 488
and 531—Scope of.
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 division, district, snb-division
or
(éth’ertlocal
area, unless it appears that such error has in fact occasioned a failure
0
1115 we.
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 jurisdiction.
The Magistrate passed
an
order. that the dec1sion on the question of jurisdiction must await the recording
of eVidence
on the whole
case.
The respondent did
not challenge 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
res-
pondent’s revision application to the High Court.
The High Court he’fd that by
taking recourse to s. 531, proceedings could not be entertained in a Court which
had no jurisdiction—anew so when an objection had been taken against its main-
tainability—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 respondent right at the first instance.
[1003 F]
l. (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 in 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, ordinarily, be
no
reason why
5.
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 wilfiilly 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 sub—
section 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 finds
that he
has the territorial jurisdiction.
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 respec-
tive contentions about the correct place of the proceeding,
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.
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
.
SUPREME COURT REPORTS
[1977] 2 5.0K—
rnakes a reference to s. 531 in passing and not for the purpose of assuming juris—
diction under it.
If the Magistrate, in this case, had thought of assuming juris—
diction under s. 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
111 his order and arrived at the decision that he had the jurisdiction. [1002 D-G]
Purushottamdas Da/miu
v.
The
State of West Bengal [1962]
2 S.C.R.
101
followed.
Rad/tarani
v. Ra/lim
Sarah/r.
A.I.R.
1946 Calcutta 459.
Saktlnz‘ala v.
Thim—
malyya [1966]
2 M.L.J.
326. Slate
V. Tamra Naika A.I.R.
1959 Mysore
193.
Sultan Clland
V.
Yogindra Natl:
Baz. A.I.R.
1944,
Peshawar
25
and
Satwam
Sing/1 v. sz‘. Jarwanr 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 confinin

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