Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Atal Bihari - Appellant
Versus
Union Of India & Ors. - Respondent
SWP No. 57/2007 And CMP No. 58/2007
Decided On : 28 November, 2007
Jurisdiction - Cause of Action - Article 226 - [Jurisdiction] - [Cause of Action] - [Article 226]
Fact of the Case:
The petitioner, a Constable at Daspara, near Border observation post, Makarhat, was accused of committing a civil offence of using criminal force to a woman with intention to outrage her modesty, punishable under Section 354 of the Indian Penal Code. He was tried by Summary Security Force Court and dismissed from service. The petitioner challenged the orders passed by Commandant 89 BN, BSF, Govindpur Raiganj (West Bengal) and Director General, Border Security Force, New Delhi, on the grounds of jurisdiction.
Finding of the Court:
The Court found that the communication of the decision of Director General, Border Security Force, to the petitioner in the State of Jammu and Kashmir would not constitute an integral part of the cause of action entitling him to challenge the orders of the Commandant and the Director General in this Court. The preliminary objection as to the maintainability of the writ petition prevailed, and the Court held that it would not have any jurisdiction to entertain the petitioner's writ petition, which was accordingly rejected.
Issues: The main issue was whether the Court had jurisdiction to entertain the petitioner's writ petition challenging the orders passed by Commandant 89 BN, BSF, Govindpur Raiganj (West Bengal) and Director General, Border Security Force, New Delhi.
Ratio Decidendi: The Court held that the communication of the decision of Director General, Border Security Force, to the petitioner in the State of Jammu and Kashmir would not constitute an integral part of the cause of action entitling him to challenge the orders of the Commandant and the Director General in this Court. The Court found that the cause of action did not arise within its territorial jurisdiction.
Final Decision: The Court rejected the petitioner's writ petition, holding that it did not have jurisdiction to entertain the petition.
2. While serving as Constable at Daspara, near Border observation post, Makarhat, the petitioner was accused of committing a civil offence of using criminal force to a women with intention to outrage her modesty, punishable under Section 354 of the Indian Penal Code. He was later tried by Summary Security Force Court and dismissed from service. The sentence of the Summary Security Force Court was promulgated on 18.07.2006 and the Summary Security Force Court trial proceedings were countersigned by D.I.G, B.S.F, Kishanganj where after these were submitted to Chief Law Officer/DIG LAW Branch, BSF, New Delhi. Petition preferred by the petitioner against the finding of Summary Security Force Court was dismissed by Director General, Border Security Force vide order dated 7.11.2006.
3. Petitioner has raised various grounds to question the orders passed by respondent nos. 2 and 3.
4. Union of India, while meeting the grounds urged by the petitioner in his writ petition, has raised various preliminary objections to the maintainability of the petition. One of the objections so raised is that no cause of action having accrued to the petitioner within the jurisdiction of the Court, the writ petition may not be maintainable. In support of their contentions, the respondents say that the petitioner had committed the offence under Section 46 of the Border Security Force Act at Govindpur, Raiganj (West Bengal), and the orders impugned in the writ petition had been passed/issued by the respondents outside the jurisdiction of the Court so neither any cause of action nor any part thereof had accrued to the petitioner to maintain the writ petition in this Court.
5. Learned counsel for the parties have been heard on the preliminary objection raised by the respondents that this Court may not have the jurisdiction to entertain the writ petition.
6. Learned counsel for the petitioner submits that as the decision of the appeal/statutory petition of the petitioner had been conveyed to him at Kishtwar (Jammu and Kashmir) so this Court will have jurisdiction to entertain the petition because a part of the cause of action had accrued to him within the jurisdictional limits of this Court. Learned counsel refers to Brig. Narinder Singh Mehta v. Union of India, reported as 1996 KLJ 382 besides Alchemist Limited & anr v. State Bank of Sikkam & ors., reported as AIR 2007 SC 1812.
7. Learned counsel for the respondents, on the other hand, refers to Lt. Col. Khajoor Singh v. Union of India and anr, reported as AIR 1961 SC 532, Bodh Raj Sharma v. Union of India and anr. reported as 1976 KLJ 45, Mohan Lal Dhar v. The State Bank of Infdia and ors. reported as 1971 KLJ 305, Manjeet Singh v. The Collector of Customs and ors. reported as 1986 KLJ 360, Rajendra Kumar Mishra v. Union of India and ors. reported as 2005 LAB IC 2229 FB0 Allahabad. He has placed reliance on Alchemist Limited and anr v. State Bank of Sikkam and ors. reported as AIR 2007 SC 1812, too.
8. I have considered the submissions of learned counsel for the parties. Before dealing with issue as to whether or not the Court has jurisdiction to entertain petitioners writ petition, reference needs to be made to the provisions of the Constitution of India, as it was applicable to the State of Jammu and Kashmir.
9. Clause (1-A) of Article 226 of the Constitution of India as it was applied to the State of Jammu and Kashmir by Presidential order dated 24.08.1979, reads thus:-
"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 e
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
