Dr.subramanian Swamy v. Union Of India & Others

B.C. Patel, CJ.

1. The petitioner by filing this petition under Article 226 of the Constitution of India has prayed to issue appropriate writ, order or direction directing the respondents to appoint a special commissioner to expeditiously investigate the offences disclosed in the petition.

2. At the outset, it is required to be noted that the petitioner has no personal knowledge in the matter. Some one has come out with some report in the newspaper and the petitioner is seeking the reliefs on the basis of such a report. The matter was plated for admission initially on 12.12.2001 when a notice was issued to respondents No. 1 to 3 only and no notice was issued to the rest of the respondents. On 4.2.2004, the petitioner requested for deleting the name of respondent No. 4 and accordingly the name of respondent No. 4 was deleted from the array of parties.

3. It is also required to be noted that before the present petition was filed by the petitioner, a charge sheet was filed before the Court of Metropolitan Magistrate, Chennai wherein it was pointed out that a case was registered on 7.8.1993 against Shri. M.L.Sitaraman, Proprietor of M/s. Southern Art, 10D, First East Main Road, Shenoy Nagar, Madras and other unknown person under Section 120B of the Indian Penal Code and Section 25(1) read with Section 3 of Antiques and Art Treasures Act, 1972 (for short “AAT Act”) for illegal export of antiquities. Charge sheet was filed in the case which resulted in acquittal of the accused.

4. Another case was registered on 4.11.1994 on the basis of information received from Dr.C.Margbandhu, Director, A.S.I., for similar offences, but for different articles, against Shri C.P.Singh, formerly a resident of Kaka Nagar, New Delhi and Shri Gulsh in Kumar Bhardwaj of 6/125, Bajrang Street, Jind (Haryana) alleging therein that a terracotta panel with two monkeys in fighting pose had been smuggled out of India. As no evidence could be found, the case was closed and the closure report was accepted by the Court of competent jurisdiction on 27.2.1997.

5. The petitioner has contended that he had communicated information vide letters dated 3.3.2001 and 31.3.2001 and the same ought to have been examined. The initial order made by the Court also makes it clear that the question was limited one and respondents 1 to 3 were asked to submit status of the information alleged to have been supplied by the petitioner. It is contended by the petitioner that a report was published in the daily “Hindu” dated 3.2.1998 and the author of it is one Vaiju Naravane. The said report was under caption “The Cinderella of Orbassano.”

6. On behalf of Union of India, Shri Hari Manjhi working as Director, Antiquity in the Archaeological Survey of India, Janpath, New Delhi filed an affidavit, inter alia, pointing out that in July, 2001, a Committee was constituted by the DG. ASI to examine the charges levelled by the present petitioner regarding illegal export of Indian antiquities from Chennai and Bangalore and the said Committee had wide ranging discussions with the Superintending Archaeologist, ASI and other Government departments including Customs. The Customs Department pointed out that as far as they are concerned, the consignment of statues, sculptures and artifacts are subject to 100% examination and the moment there is a doubt, the consignment is referred to ASI for its expert opinion. It is further pointed out by the deponent that the Committee did not come across any evidence whatsoever which would suggest any smuggling of sculptures or facts to the two named firms in the petition, namely, M/s. Etnica in Rivolta and Ms. Ganpati in Orbassano. It is in view of this the deponent stated that it does not appear that the allegations made by the petitioner on this score have any real foundation.

7. About the allegations made by the petitioner with regard to FIR registered on 8.7.1993 in respect of smuggling of antiquities to Italy, an Italian gentleman, who was a resident of Verona, Italy and an agent of the two shops, it is pointed out that the case was investigated by the C.B.I. and after completion of the investigation, a charge sheet was filed against the accused M/s.Southern Art, Chennai (Exporter). However, they were acquitted by the trial court in Chennai. It is further stated by the deponent that investigations carried out did not disclose any material which would suggest any involvement of respondent No. 6 or any of her family members, as suggested by the petitioner. Close relatives of respondent No. 6 were alleged to be the owners of shops in question, however, there was no evidence to substantiate the same. Yet the petitioner made allegation regarding removal of the former Director General, ASI. In para 7, the deponent pointed out true facts. Even allegations were made about issuance of a false certificate, which has been denied by the deponent by referring the dates during which period no article was examined under the provisions contained in Section 24 of the AAT Act. About the allegation of theft of antiquity, in para 8, its pointed out that even articles were recovered immediately in the year 1986.

8. One Shri Jai Swadesh, S.P., C.B.I. placed on record an affidavit dated 22.8.2003 wherein he has reproduced the report or information received from the Interpol, Rome. It is specifically stated as under:-

“Both firms import on their own directly from India the selling material. Therefore, they have no importer. Zanderigo Guido is not known by the above and never had business affairs with the above firms.”

9. Thus it is clear that as per the report, there is no question of any third person acting as an agent. With reference to other two firms, it is pointed out that imports are from India and Thailand. So far as items imported from India are concerned, it is stated that the items were exported from Jaipur and Jodhpur. There was no evidence to connect respondent No. 4. It is in this back ground that reliance is placed by the respondents on the decision of Apex Court in the case of Binay Kumar Singh v. State of Bihar (1997) 1 S.C.C.283 wherein the Apex Court has held:-

“the Officer-in-Charge of a Police Station is not obliged to prepare FIR on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of a cognizable offence. It is open to the Officer-in-Charge to collect more information containing details about the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto.”

10. From the affidavit, it transpires that as information received from the Interpol, Rome was considered as authentic and the investigation carried out by responsible officers of the investigating agency in Rome, the deponent was of the opinion that no further investigation is required in the matter. It is in view of this, it was thought fit to come to a conclusion that there is no ground or reason to proceed further.

11. The petitioner has placed much reliance on an article published in “Hindu” by one Vaju Naravane. Article refers to genuine paintings, antiquities, furniture and Shahtoosh shawls. The article is written by one Ms.Vaiju Naravane, which is dated 23.2.1998. There is nothing to indicate that Ms.Vaiju Naravane possesses expertise or is an expert and without any expertise, on mere look at the article by naked eye, one cannot definitely say about the article whether it is antiquity or not. It requires close study of the object and other technical aspects. Again it is published in “Hindu”. The petitioner, if, he wants to rely on some information, then he ought to have filed an affidavit of a person claiming to have seen the article having knowledge to say that article seen by him/inspected by him is an antique. On such news items no reliance can be placed for seeking a direction, directing C.B.I. to prosecute a person in the facts and circumstances of the case narrated hereinabove.

12. The petitioner, in his affidavit dated 11.11.2003 has relied on a letter purported to have been written by one G.K.Menon, resident of 3/238, Miller Road, Bangalore-560001 which was published in a weekly newspaper “Organizer” dated 3.8.2003 under the heading “Antique Business”. At page 277 the deponent on behalf of the respondent has pointed out about this aspect. Discreet check with various sources including the postal authorities, Bangalore Mahanagar Palika, electoral records and the Telephone Department revealed that there is no Miller Road in Bangalore with postal code as 560001 but there is Miller Road in Bangalore with Pin Code 560052. Inquiry further reveals that there is no address by No. 3/238 on the said Miller Road and there is no person known as Mr.G.K.Menon residing at the Miller Road. It is stated by the deponent on behalf of the respondents that it appears that the said article has been published at the behest of some one. The petitioner has referred to Dr.A.Ghosh, who visited a shop in Italy in the year 1999. However, merely seeing Statutes of Hindu Gods and Goddesses, it cannot be presumed that they were Antiquities and it is not the say of Dr.A.Ghosh that he possesses requisite skills and can say that articles were Antiquities or not.

13. Thus it is clear that the petitioner has no information with him but relying on some hear say evidence wants to move the machinery and that cannot be done by the Court in view of the material placed by the C.B.I.

14. The offence being cognizable, the police can take cognizance of an offence. If a cognizable offence is committed, then it becomes the bounden duty of a citizen to inform the police. In this case reliance is placed on some news items and no affidavit has been filed by a person, who is alleged to have written the article and, therefore, no reliance can be placed on such articles.

15. It is also interesting to note that ordinarily a person is required to approach the police officer of a police station having jurisdiction over the area where offence is alleged to have been committed. In the instant case, from the averments made, it is clear that all the articles are alleged to have been exported from Bangalore and Chennai and, therefore, this Court will have no jurisdiction to entertain the petition.

16. In the opinion of the Court, the material placed on record by the respondents clearly reveals that an opinion was expressed not to proceed further in the matter on the basis of material collected before cognizance could be taken. Therefore, this petition is required to be dismissed. Ordinarily, in case a cognizable offence has been committed, the informant” duty is to inform the concerned police station and it is the duty of the Station House Officer to investigate the matter in accordance with law. However, if on collection of the material, police officer files a report disclosing that no offence is committed, there is a remedy provided in the Criminal Procedure Code. If on the basis of an FIR or a complaint, which is filed in the Court and is sent under Section 156(3) of the Cr.P.C for investigation and the case is not made out, then before accepting the report submitted by the police, opportunity of hearing is to be given to the complainant before a report is accepted by the Magistrate.

17. If the petitioner has evidence with him, he can lodge an information with the police station where the offence is committed instead of approaching the High Court by filing a writ petition. In this matter, in view of the earlier investigation which ld the police to file a charge sheet and on trial, accused charge sheeted were acquitted by a court of competent jurisdiction at Chennai. For other articles, police on investigation submitted a report which was accepted by the court of competent jurisdiction. Considering the affidavits on record, the decision of the investigating agency not to proceed further cannot be interfered with.

18. It appears from the record that the petitioner moved the concerned Ministry vide letter dated 18-1-2001, a copy of which is produced as Annexure D at page 29. The last paragraph of the letter also discloses that even as per the say of the petitioner, the piracy was committed in Tamil Nadu and articles were exported on false certificate from Chennai and Bangalore International Airports. It is in view of this that this court is of the opinion that this Court will have no jurisdiction to entertain the petition as the alleged offences were committed outside the territorial jurisdiction of this Court.

19.In a petition under Article 226 really speaking the Court has to see where the cause of action has arisen. In this connection we would like to refer to a judgment of this Court in case of Dr. Subramanian Swamy v. Union of India and others (Civil Writ Petition No. 1549/2001 decided on April 29,2003) wherein it was held as under:-

“In this connection, we may also note the decision of the Supreme Court in the case of Union of India and Ors. vs. Adani Exports Ltd and another, (2002) 1 SCC 567 [LQ/SC/2001/2506] wherein, while considering the question of territorial jurisdiction of the High Court, the Supreme Court observed as under:-

“17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in

their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the courts territorial jurisdiction unless those facts pleaded 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. If we apply this principle then we see that none of the faces pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.

In the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and others, (1994) 4 SCC 711 [LQ/SC/1994/575] , the question of territorial jurisdiction came to be considered by the Apex Court. In that case, in response to advertisement inviting tenders at Delhi for works to be executed in Gujarat, the petitioner sent its tender to Delhi from Calcutta. He made representations from Calcutta against non-consideration of its offer. Court pointed out that such averments in the petition did not disclose that

even a part of the cause of action arose within the territorial jurisdiction of Calcutta High Court. The Apex Court in the said case considered the case of Subodh Kumar Gupta vs. Shrikant Gupta and others reported in (1993) 4 SCC 1 [LQ/SC/1993/637] . We reproduce para 9 of the Apex Court judgment in case of ONGC (supra):

“In Subodh Kumar Gupta case, the facts revealed that he had instituted a suit in the Court of Senior Judge, Chandigarh, for dissolution of the firm in which he as partner had 20% share along with his father, brothers and one another. The head office of the firm was situate in Mumbai where the firm was registered with the Registrar of Firms. Its factory was situate at Mandsaur where the father Rajaram Gupta lived with his sons and attended to the partnership business. The plaintiff-petitioner was also residing in Mandsaur till 1974 when he shifted to Chandigarh. He, however, visited Mandsaur often in connection with the business of the firm. The case pleaded by him was that after he shifted to Chandigarh he used to call for and received the statements of account of the business carried on at Mandsaur. He had got letterheads printed indicating that the branch office of the firm was at Chandigarh and he claimed that he also booked orders for the firm at Chandigarh. It was also pleaded that certain disputes had arisen regarding the management of the partnership firm and in regard to the correctness of the accounts which were discussed at the meeting in Bhilai at the end whereof an agreement was drawn up for the dissolution of the partnership and for distribution of assets amongst the partners to which the plaintiff was a signatory. The suit filed in the Chandigarh court was resisted on the preliminary contention that no part of the cause of action had arisen at Chandigarh and therefore that court had no jurisdiction. The Chandigarh court upheld the contention and this Court affirmed the said view. While dealing with the averment that the plaintiff was carrying on business of the firm from Chandigarh where the branch office of the firm was situate this court held that there is no averment that the branch at Chandigarh was started with the consent of the other partners and intimation thereof was given to the Registrar of Firms as required by Section 61 of the Partnership Act; the mere printing of stationery was neither here nor there and therefore no part of the cause of action could be said to have arisen within the territorial jurisdiction of the Chandigarh Court.”

20. Thus it is clear that the petitioner has no information with him but relying on some hear say evidence wants to move the machinery and that cannot be done by the Court in view of the material placed by the C.B.I.

21. In the case of Navinchandra N. Majithia vs. State of Maharashtra and others, 2000 (7) SCC 640 [LQ/SC/2000/1308] , the Apex Court was also required to considered the same question. The Apex Court in para 21 considered the decision of the Apex Court in case of ONGC (supra) and after referring Article 226(2), the court pointed out :

“On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Para III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.”

22. The Apex Court in the case of Navinchandra N. Majithia (supra) pointed out in para 22 as under in so far as the territorial jurisdiction with reference to the criminal offence is concerned:

“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.”

23. In para 41 in the case of Navin Chandra N. Majithia (supra), the Apex Court considered the case of State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 [LQ/SC/1985/115] and quoted the observations made in the case of ONGC (supra) which are as under:

“It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J (as the learned Chief Justice then was) speaking for M.N. Venkatachaliah, C.J. and B.P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations. (SCC p.722 para 12):

“If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however, trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.”

24. In para 43, in the case of Navin Chandra N. Majithia (supra), the Court pointed out as under:

“43. We make it clear that 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 are we to be understood 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.”

25. The Court pointed out that large number of events have taken place at Mumbai in respect of allegations contained in FIR registered at Shillong. If the averments in the writ petition are correct then major portion of the facts which led to registering of FIR have taken place at Mumbai. Ultimately, the court held that it is almost impossible to hold that not even a part of the cause of action has arisen in Mumbai so as to deprive the High Court of Mumbai of total jurisdiction to entertain the writ

petition filed by the petitioner.

26. In the case of Union of India v. Adani Exports Ltd (2002) 1 SCC 567 [LQ/SC/2001/2506] , passbook was issued at Chennai by designated authority at Chennai and transactions concerning the said passbook were made from Chennai port. In that case, the respondent carried on their business of export and import from Ahmedabad. Their orders of export and import were placed from and were executed at Ahmedabad; documents of export and import were sent/made at Ahmedabad; credit of duty claimed in respect of exports were handed from Ahmedabad; non-granting and denial of utilisation of the credit in the passbook will affect the respondents business at Ahmedabad; the respondents executed bank guarantee through their bankers at Ahmedabad as well as a bond at Ahmedabad, where the grounds taken for having jurisdiction over the subject in Gujarat State. Thus, it is very clear that where cause of action arose is required to be seen. At least, part of the cause of action must have arisen within the territorial limits where the court is required to take cognizance of the matter.

27. In the instant case it is clear from the petition itself that the matter was investigated at Chennai and the charge sheet was filed at Chennai. The acts are alleged to have been committed at Chennai and, therefore, this Court will have no jurisdiction to entertain the petition.

28. There is yet another decision of the Apex Court in M/s Kusum Ingots and Alloys Ltd. v. Union of India and Another (JT 2004 (Suppl.1 ) SC 475) wherein the Court held as under:-

“6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate light to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily.”

“13. This Court in Oil and Natural Gas Commission” case (supra) held that all necessary facts must form an integral part of the cause of action. It was observed:

“So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action.”

“30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga v. Dewan Jagbir Sawhany; Mandal Jalan v. Madanlal; Bharat Coking Coal Limited v. M/s Jharia Talkies and Cold Storage Pvt. Ltd; S.S. Jain and Co and Anr. v. Union of India and Ors; M/s. New Horizon Ltd. V. Union of India.)”

29. It is in view of what is stated hereinabove this Court will have no jurisdiction to entertain the petition. The petition is, therefore, dismissed with no order as to costs.