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2012(1) Crimes 443 (Ker.)
KERALA HIGH COURT
R. Basant and K. Surendra Mohan, JJ.
Arun Ramachandran Nair —Petitioner
versus
State of Kerala and Anr. —Respondents
Criminal Revision No. 3330 of 2010
Decided on 9.6.2011
Held: It is evident that the learned Judges in Thresiamma (supra) had employed the expression ‘trial’ only to indicate that the objection must be raised at the earliest opportunity. When their Lordships in that context made use of the expression ‘trial’, what was evidently meant was that objection should not be raised as in Meenakshi (supra) when the entire ‘trial’ was over and the final verdict was rendered. In Wipro (supra), the objection was not raised by the accused and the court had suo motu ordered there turn of the complaint long after the commencement of proceedings. In Thresiamma (supra) also objection was raised after completion of evidence and questioning of the accused under Section 313 CrPC only at the stage of arguments. We may again note that the expression ‘trial’ was not employed in these two cases in any rigid or technical sense. It is well settled that an objection to territorial jurisdiction must be raised at the earliest opportunity .The learned Judges were only insisting that the objection to territorial jurisdiction in a prosecution under Section 138 of the Negotiable Instruments Act must also be raised at the earliest opportunity. When their Lordships employed the expression “at least before starting of the trial”, the evident intendment was that such objection must be raised before actual adducing of evidence has taken place by examination of witnesses in court.
We do in these circumstances clarify that the expression ‘trial’ was not employed by the Division Bench in paragraph 19 of Thresiamma (supra) in any technical or rigid sense. It must be driven home clearly that objection to territorial jurisdiction has to be raised at the earliest opportunity. Whether it has been raised at the earliest opportunity or not is a question to be considered in the facts and circumstances, of each case. Ordinarily, it must be raised necessarily before the ‘trial’—we mean before the adducing of evidence by examination of witnesses has commenced. (Paras 16 & 17)
In the result:
(a) We concur with the dictum in Thressiamma v. State of Kerala, 2010 (4) KLT 598, subject to the observations in paragraph 17 of this judgment. We clarify that the expression trial was used not technically or rigidly, but only to indicate that objection of territorial jurisdiction must be raised at the earliest at any rate before actual adducing of evidence i.e., examination of witnesses in Court. (Para 22)
ORDER
R. Basant, J.—What does the expression ‘trial’ mean and signify when that expression was employed by the Division Bench in paragraph 19 of Thressiamma v. State of Kerala1 where their Lordships held that a dispute regarding territorial jurisdiction of a Magistrate before whom he is prosecuted should be raised by the accused at the earliest at least before starting ‘trial’?
2. This is the point that arises for consideration in this Revision Petition which has been referred to the Division Bench as per order dated 7.12.2010 of a learned Judge (Justice V. Ramkumar) who felt that the decision if literally construed would lead to difficulties. His Lordship the Chief Justice has directed that the matter replaced before us, conscious of the fact that both Judges who rendered the decision are available. We are hence proceeding to consider the matter notwithstanding the fact that we feel that ideally the question could have been considered by the Bench which rendered the decision in Thressiamma (supra).
3. A brief reference to facts may be relevant. The revision petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. Complaint against him was filed before the learned Chief Judicial Magistrate. Ernakulam on 19.10.2006. Cognizance was taken on the same day. The case was transferred to the 1earned Judicial Magistrate of the First Class (IV) Kochi by the learned Chief Judicial Magistrate. Consequent to the non-appearance of the petitioner/accused before the learned Magistrate, warrant of arrest was issued against him. He appeared before the learned Magistrate on 6.3.2010. To record the plea, the case was adjourned and the plea under Section 251 Cr.P.C. was ultimately recorded on 23.6.2010 and after recording the plea of not guilty, the matter was adjourned to 17.8.2010 for evidence of the complainant. On the day, the accused filed a petition questioning the maintainability of the prosecution before the Learned Magistrate. The Learned Magistrate lacked territorial jurisdiction, it was contended. That petition was heard and the impugned order was passed on 27.10.2010. The objection was overruled and it was held that the Learned Chief Judicial Magistrate, Ernakulam had the requisite territorial jurisdiction to entertain the complaint.
4. The petitioner/accused claims to be aggrieved by the impugned order. A contention is raised by the complainant/respondent that objection to territorial jurisdiction could not be raised after commencement of ‘trial’. Relying on the decisions in Wipro Limited v. Sasi2, by a learned single Judge and Thressiamma (supra) by a Division Bench, it is contended that the petitioner/accused could not have raised an objection to jurisdiction after particulars of the offence were read over and his plea was recorded under Section 251 Cr.P.C. Trial had started by then and have no objection to territorial jurisdiction could legally be raised thereafter in the light of Thressiamma contends counsel.
5. The learned counsel for the petitioner submits that the expression ‘trial’ was not used in Wipro or Thressiamma (supra) in any technical or rigid sense. The expression ‘trial’ was not used in those precedents to indicate that the rubicon of recording the plea under Section 251 Cr.P.C. should not be crossed before the objection is raised by the accused, contends the learned counsel for the petitioner.
6. The learned counsel contends that if such a narrow and rigid view were to be taken, the accused in a prosecution will virtually be denied his opportunity to raise his objection against territorial jurisdiction. The learned counsel relies on the provisions of Chapter XX of the Code of Criminal Procedure which prescribes the procedure for ‘trial’ of summons cases. Summary trial which is the normal rule in prosecutions under Section 138 of the Negotiable Instruments Act must also follow the basic stipulation of Chapter XX regarding trial of summons cases.
7. As per the scheme of Chapter
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