Holding

The Court held that the existing remedial steps were inadequate and issued comprehensive directions to prevent further erosion of the Shivalinga and to preserve the temple structure.

Summary

The Supreme Court was monitoring compliance of its earlier order directing an Expert Committee of ASI and GSI to examine erosion of the Shivalinga at Shri Mahakaleshwar Temple, Ujjain. The Committee’s report dated 19‑01‑2019 identified ongoing physical and chemical deterioration of the lingam, caused by high pH of offerings, mechanical abrasion, and modern constructions. The Temple Committee’s response indicated some remedial steps but the Court found the measures insufficient, noting continued erosion in July 2020 photographs. Accordingly, the Court issued detailed directions for further expert inspection, yearly surveys, removal of modern additions, restoration of original work, provision of filtered water, restriction of offerings, and structural stability assessment by CBRI, with funding to be provided by the Central Government. The Court also directed the Ujjain Smart City Ltd. to implement a comprehensive development plan and ordered removal of encroachments within 500 metres, with compliance reports to be filed by 15‑December‑2020.

Issues considered

Whether the erosion of the Shivalinga and structural integrity of Shri Mahakaleshwar Temple require further remedial action.
Whether the Temple Committee has complied with the directions of the Supreme Court and the Expert Committee’s recommendations.
What specific measures should be mandated to prevent further deterioration of the lingam and preserve the temple’s heritage.

Subjects

religious heritagetemple preservationShivalinga erosionexpert committeeSupreme Court monitoringcultural heritage protectionenvironmental degradation

Judgment

[2020] 9 S.C.R. 303 303

SARIKA A
v.
ADMINISTRATOR, MAHAKALESHWAR MANDIR
COMMITTEE, UJJAIN (M.P.) & ORS.
(M.A. No. 1235 of 2019) B
In
(Civil Appeal No.4676 of 2018)
SEPTEMBER 01, 2020
[ARUN MISHRA, B. R. GAVAI AND C
KRISHNA MURARI, JJ.]
Religious heritage/monuments – Erosion of Shivalinga in Shri
Mahakaleshwar Temple, Ujjain – Prevention of – Expert Committee
consisting of experts of ASI and GSI appointed by Supreme Court
vide order dated 02.05.2018 in Sarika v. Administrator, Shri D
Mahakaleshwar Mandir Committee, Ujjain (M.P.) & Ors. reported
as [2018] 4 SCR 634 – Monitoring compliance of – Held:
Considering the facts and circumstances of the Report submitted by
the Expert Committee, Report of Temple Committee and the project
report prepared by Ujjain Smart City Ltd., directions issued.
E
Issuing directions, the Court
HELD: Considering the facts and circumstances of the
Report submitted by the Experts Committee dated 19.01.2019
and the Report of the Temple Committee as well as the project
report prepared by the Ujjain Smart City Ltd., the following F
directions are issued:- (i) The Expert Committee shall visit the
temple and submit a report by 15th December 2020, as to the
steps to be taken to prevent deterioration of Shivlinga and the
steps to be taken to preserve the temple structure, including
Chandranageshwar Temple. (ii) The Committee to do a yearly
survey and submit a report to this Court. (iii) Directions to G
preserve the Shivalingam. (iv) The Temple Committee shall
provide water from Koti Thirth Kund filtered and purified and
further maintain the required pH value. (v) Let the CBRI,
Roorkee visit the temple, if necessary, and submit a project report
as per its proposal dated 17.09.2019. CBRI, Roorkee, is directed H
303
304 SUPREME COURT REPORTS [2020] 9 S.C.R.

A to submit a project report regarding structural stability within
six months. A sum of Rs. 41.30 Lakhs, as required by it, shall be
paid by the Central Government as early as possible. (vi) Ujjain
Smart City Ltd., as per its letter dated 27.08.2020, to undertake
Mahakaal Rudrasagar Integrated Development Approach (Phase
I and Phase II) forthwith and submit to this Court detailed project
B
report and the time frame within six weeks. (vii) Let the details
of necessary repairs, maintenance, and improvement be worked
out and carried out forthwith. Let the Collector prepare a
comprehensive plan for this purpose with the help of the
Superintendent Engineer and available Architect. The State
C Government shall sanction fund immediately. Let a suitable plan
and estimate be prepared within four weeks, and necessary repair
and maintenance work be carried out urgently. (viii) The Expert
Committee ordered the removal of modern additions, as noted
at Item No. 20. They shall be removed, and the Temple
Committee shall file a compliance report to this Court by 15th
D
December, 2020. (ix) The original work in the temple is required
to be restored. As assured by the Committee, let restoration
work be done concerning eyesore painting by 15th December,
2020. The Temple Committee to ensure in future not to permit
or resort to such painting and covering of the original work,
E objected by the Expert Committee. Let a report be submitted to
this Court in this regard by 15th December, 2020. (x) The Collector
and Superintendent of Police of Ujjain to ensure that encroachment
within 500 mtrs. of the area of the temple premises are removed,
as suggested by the Experts Committee. Let needful be done by
15th December, 2020, and a report be submitted to this Court.
F
(xi) Concerning the preservation and maintenance of
Chandranageshwar Temple, a comprehensive plan be prepared
and implemented, and be submitted to this Court for information.
(xii) If any area is slippery in Garbh Griha, the Temple Committee
to ensure that the needful is done. (xiii) Let the necessary
G religious rituals be performed regularly along with other aspects
as discussed in Para 5 of the order. [Para 9][308-D-H; 309-A-H;
310-A-G]
Sarika v. Administrator, Shri Mahakaleshwar Mandir
Committee, Ujjain (M.P.) & Ors. [2018] 4 SCR 634 –
H referred to.
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR 305
COMMITTEE, UJJAIN (M.P.) & ORS.

Case Law Reference A
[2018] 4 SCR 634 referred to Para 1
CIVIL APPELLATE JURISDICTION: M.A. No. 1235 of 2019
in Civil Appeal No. 4676 of 2018.
From the Judgment dated 27.10.2016 of the High Court of Madhya B
Pradesh, Bench at Indore in Writ Appeal No. 37 of 2014.
By Courts motion.
Tushar Mehta, SG, Saurabh Mishra, AAG, S.B. Upadhyaya, Sr.
Adv., Divyakant Lahoti, Niraj Sharma, Rohit K. Singh, Nishant Kumar,
Ms. Anshruta Maheshwari, Arjun Garg, Ms. Shrutika Garg, Rahul C
Kaushik, Gurmeet Singh Makker, Rajat Nair, Raj Bahadur Yadav,
Mrs. Anil Katiyar, Atishi Dipankar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
D
1. This Court is monitoring the compliance of the judgment and
order passed by this Court in Civil Appeal No. 4676/2018 on 02.05.2018.
We have appointed an Expert Committee consisting of experts of
Archaeological Survey of India and Geological Survey of India concerning
the prevention of erosion of Shivalinga in Shri Mahakaleshwar Temple
at Ujjain. The Expert Team visited Ujjain on 19.01.2019. Its Report E
indicates that there was erosion of Shivalinga after the last inspection,
and it is a continuing process. The last inspection was made earlier in
2018. The time gap was short when the inspection was made. As such,
the extent of further erosion was not measured. However, the facts
remain that there was some erosion of the Shivalingam. We have vide F
order dated 19.08.2020 called for the Action Taken Report from the
Temple Committee. The Temple Committee has submitted the response
to the various measures pointed out by the Committee of the Experts in
the inspection report dated 19.01.2020. Since it has been noted that the
deterioration and erosion of Lingam is a continuing process, the
photographs of July 2020 indicate that there was further erosion of the G
Lingam. A patch of Shivlinga towards the side of the deity of Shri
Kartikeyan is quite visible. The matter is of grave concern as due to
reckless offerings, the Lingam of Omkareshwar Temple was destroyed.
The Report indicates that the pH value of Bhasma Aarti stands at 10.51,
which is required to be improved and is reactive to Cryptocrystalline H
306 SUPREME COURT REPORTS [2020] 9 S.C.R.

A siliceous cementing material of orthoquartzite at room temperature and
causing deterioration in Jyotirlingam. Sanitation and drainage were
required to be improved. There was a mechanical erosion also of the
Lingam due to the weight of Mund Mala and Serpakarnahas. Though
their weight has been reduced to half, mechanical abrasion takes place
due to their existing weight. It was also suggested that the rubbing of the
B
Lingam by the devotees be strictly banned. It was also reported that
there was modern style construction made in the temple premises, which
needs to be removed. It was also pointed out that the modern construction
within the temple premises was in progress, which was required to be
stopped and removed. The necessity was also felt to restore the original
C work. The walls were painted with colours, which was giving a bad look
to the ancient heritage place. There were additions in the form of eyesore
painting inside the temple, which were yet to be removed. It was reported
that ghee, milk, curd, and honey are regular in the offering. The Temple
Management Committee has decided to provide pure and natural offering
material to pilgrims. There was a necessity for a periodical review of
D
the remedial measures.
2. The stand of the Temple Committee is that during Bhasma
Aarti, the cloth is covered on Shivalinga and is cleaned with RO water
after that. They are regulating the entry into the Garbh Griha, and during
the COVID pandemic, no access is permitted. They have been restoring
E the original work, which is in progress and will be completed within
three months. Concerning eyesore paintings, their removal is in the
process and would be completed within three months. The Temple
Committee has decided to meet monthly to do a review.
3. A Report dated 28.07.2019 indicated that Chandranageshwar
F Temple in the premises was also not in good shape, and repair work was
required. Its roof has become weak.
4. The Temple Committee pointed out that there is a necessity of
further inspection by the experts’ team, as the last inspection was made
1½ years ago. The team of experts is located at Bhopal. They can visit
G the temple at any time. Periodic inspection by the Expert Committee is
necessary for the remedial measures and to prevent erosion and to
preserve the temple structure. To ensure that there was no rubbing of
Shivalinga, the Poojaries (Janeupati, Khutpati), Purohits, and their
authorized representatives be directed to ensure that no visitors or devotees
H rub the Shivalinga. There should be a video recording of the entire process,
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR 307
COMMITTEE, UJJAIN (M.P.) & ORS. [ARUN MISHRA, J.]

and it should be preserved at least for six months. The Temple Committee A
shall provide water from Koti Thirth Kund filtered and purified to maintain
the required pH value and shall also provide milk from its resources so
that pure milk is offered to the deity. No visitor shall be allowed to offer
Panchamrita to Shivalinga.
5. It was pointed out that during COVID-19, visitors and devotees B
are not permitted to enter the sanctum sanctorum. But in our opinion, at
the same time, customary Poojaries and Purohits must perform rituals
as they know the rituals and are expert in pooja and archana. When
the Temple Committee prepares the details of rituals, customary Poojaries
and Purohits must be associated with the Committee to render proper
help and guidance in the various matters relating to the temple. Of late, C
it is seen that unfortunately the performance of necessary rituals is the
most neglected aspect in the temples, and new Poojaries do not understand
them; the same should not be the state of affairs. There is no scope for
commercialization. The myriad religious rituals and ceremonies are to
be performed regularly. We cannot direct what kind of pooja-archana D
rituals should be performed, but no doubt, they should be done regularly
by the experts in the field. Accordingly, we direct that the Temple
Committee acts in the manner described above.
6. Concerning the temple structure’s stability, the Temple
Committee has pointed out that on 31.07.2019, this Court directed the E
Central Government to get the temple and various structures inspected
by CBRI, Roorkee. The CBRI visited the temple in September 2019
and submitted a structural assessment proposal and wanted 12 months
to submit the project report. It has claimed a sum of Rs. 41.30 Lakhs as
project charges, to be paid in advance. Prayer has been made that this
Court may direct the Central Government to bear the expenses of F
Rs.41.30 Lakhs, to be paid to CBRI. The CBRI may be required to
submit its project report within a reasonable time. Shri Tushar Mehta,
learned Solicitor General appearing on behalf of the Union of India, has
agreed that the Central Government would be bearing the expenses of
Rs.41.30 Lakhs to be paid to CBRI, Roorkee. G
7. It is also submitted on behalf of the Temple Committee that it is
necessary to undertake repairs and maintenance and other construction
activities within the temple premises and further, as suggested by CBRI.
The State or Central Government may be directed to contribute adequate
funds for that purpose, including for the preservation of H
308 SUPREME COURT REPORTS [2020] 9 S.C.R.

A Chandranageshwar Temple. The Temple Committee has also prayed
that encroachment within the area of 500 mtrs. from the temple are
required to be removed, as recommended by the Expert Committee.
The concerned authorities should remove the encroachments and prohibit
the construction, otherwise than essential facilities for the public and
pilgrims.
B
8. The learned counsel appearing on behalf of the State of Madhya
Pradesh has placed on record a detailed plan prepared by the Ujjain
Smart City Limited (USCL) for the comprehensive development of Shri
Mahakaleshwar Temple and surrounding areas. The project is named
as “Mahakaal Rudrasagar Integrated Development Approach”
C (MRIDA). Letter dated 27.08.2020 issued by CEO, Ujjain Smart City
Ltd. to the Collector is placed on record, pointing out various developments
proposed for the development in Phase I and Phase II of the
abovementioned project.
9. Considering the facts and circumstances of the Report submitted
D by the Experts Committee dated 19.01.2019 and the Report of the Temple
Committee as well as the project report prepared by the Ujjain Smart
City Ltd., we issue the following directions:-
(i) That the Expert Committee shall visit the temple and submit a
report by 15th December 2020, as to the steps to be taken to prevent
E deterioration of Shivlinga and the steps to be taken to preserve the temple
structure, including Chandranageshwar Temple.
(ii) We also direct the Committee to do a yearly survey and submit
a report to this Court.

F (iii) To preserve the Shivalingam, we direct that :
(a) any devotee should do no rubbing of the Shivalingam.
(b) The Temple Committee to ensure that the pH value of
Bhasma during the Bhasma Aarti is improved and Shivalingam
is preserved from further deterioration and to implement the
G best methodology to prevent further damage to the Lingam.
(c) The Temple Committee ensures that weight of Mund Mala
and Serpakarnahas is further reduced to preserve the
Shivalingam from mechanical abrasion. The Temple Committee
to find out a way and consider whether it is necessary to use
H the Metal Mund Mala on the Shivalingam, or there can be a
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR 309
COMMITTEE, UJJAIN (M.P.) & ORS. [ARUN MISHRA, J.]

way out to use Mund Mala and Serpakarnahas without touching A
the Shivalingam. Possibility of further reducing weight may
also be found out to prevent mechanical abrasion.
(d) The rubbing of curd, ghee, honey on the Shivalingam by
the devotees is also a cause of erosion. It would be appropriate
that only pouring of a limited quantity of pure milk is allowed B
by the Committee. Whereas in the traditional puja to be done
on behalf of the temple, all pure materials can be used.
(e) Poojaries, Janeupati, Khutpati, Purohits, and their authorized
representatives to strictly ensure that no visitor or devotee rub
the Shivalingam at any cost. If it is done by any devotee, C
accompanying Poojari or Purohit shall be responsible for not
stopping the rubbing. No rubbing of Shivalingam to be done by
anyone except during traditional Puja and Archana performed
on behalf of the temple.
(f) The entire proceedings of Puja and Archana in Garbh Griha D
to be video recorded 24 hours and be preserved at least for six
months. If any violation is found by any Poojari, Purohit, let the
Temple Committee take suitable action against that Poojari or
Purohit, as considered appropriate.
(g) As agreed to on behalf of the Temple Committee, no E
Panchamrita to be poured on Shivalingam by any devotee. It
may be used only during traditional Puja and Archana of the
Shivlingam.
(h) The Temple Committee shall provide pure milk from its
resources to the visitors and devotees for offering and make F
arrangements for that. The Committee should ensure that no
impure or adulterated milk is offered to Shivalingam and
concerned Poojari/ Purohit to ensure compliance.
(iv) The Temple Committee shall provide water from Koti Thirth
Kund filtered and purified and further maintain the required pH value.
G
(v) Let the CBRI, Roorkee visit the temple, if necessary, and
submit a project report as per its proposal dated 17.09.2019. CBRI,
Roorkee, is directed to submit a project report regarding structural stability
within six months. A sum of Rs. 41.30 Lakhs, as required by it, shall be
paid by the Central Government as early as possible.
H
310 SUPREME COURT REPORTS [2020] 9 S.C.R.

A (vi) Ujjain Smart City Ltd., as per its letter dated 27.08.2020, is
directed to undertake Mahakaal Rudrasagar Integrated Development
Approach (Phase I and Phase II) forthwith and submit to this Court
detailed project report and the time frame within six weeks.
(vii) Let the details of necessary repairs, maintenance, and
B improvement be worked out and carried out forthwith. Let the Collector
prepare a comprehensive plan for this purpose with the help of the
Superintendent Engineer and available Architect. The State Government
shall sanction fund immediately. Let a suitable plan and estimate be
prepared within four weeks, and necessary repair and maintenance work
be carried out urgently.
C
(viii) The Expert Committee ordered the removal of modern
additions, as noted at Item No. 20. They shall be removed, and the Temple
Committee shall file a compliance report to this Court by 15th December,
2020.
(ix) The original work in the temple is required to be restored. As
D assured by the Committee, let restoration work be done concerning
eyesore painting by 15th December, 2020. The Temple Committee is
directed to ensure in future not to permit or resort to such painting and
covering of the original work, objected by the Expert Committee. Let a
report be submitted to this Court in this regard by 15th December, 2020.
E (x) We direct the Collector and Superintendent of Police of Ujjain
to ensure that encroachment within 500 mtrs. of the area of the temple
premises are removed, as suggested by the Experts Committee. Let
needful be done by 15th December, 2020, and a report be submitted to
this Court.
F (xi) Concerning the preservation and maintenance of
Chandranageshwar Temple, a comprehensive plan be prepared and
implemented, and be submitted to this Court for information.
(xii) If any area is slippery in Garbh Griha, the Temple Committee
to ensure that the needful is done.
G (xiii) Let the necessary religious rituals be performed regularly
along with other aspects as discussed in Para 5 of the order.
Let the case be listed for further monitoring and consideration of
the Compliance Report in the second week of January 2021.

Divya Pandey Directions issued.
H
[2020] 9 S.C.R. 311 311

KAUSHIK CHATTERJEE A
v.
STATE OF HARYANA & ORS.
(Transfer Petition (Crl.) No.456 of 2019)
SEPTEMBER 30, 2020 B
[V. RAMASUBRAMANIAN, J.]
Transfer Petition – The petitioner herein was appointed by
the second respondent, which is a non-banking finance company
and the de facto complainant in the criminal cases filed – Three
C
loans sanctioned by the second respondent-company, during the
period when the petitioner was in service, became the subject-matter
of the three different complaints lodged by the second respondent-
company – All three complaints were filed in Gurugram – After
completion of investigation police filed charge-sheet in 3 FIRs for
alleged offences of criminal breach of trust, cheating, forgery along D
with various other offences – The petitioner sought transfer of all
three criminal cases pending in the Court of Additional Judicial
Magistrate, Gurugram to any competent Court in New Delhi – It
was contended that the entire cause of action in respect of one case
arose in Delhi and the other two cases in Indore and Surat
E
respectively – Held: In the instant case, the type of jurisdictional
issue raised is one of territorial jurisdiction – The answer to this
depends upon facts to be established by evidence – The facts to be
established by evidence, may relate either to the place of commission
of the offence or to other things dealt with by ss. 177 to 184 of the
Code – In such circumstances, this Court cannot order transfer, on F
the ground of lack of territorial jurisdiction, even before evidence
is marshaled – These questions may have to be raised before the
court trying the offence and such Court is bound to consider the
same – Code of Criminal Procedure, 1973 – ss.461, 462 and 177 to
184.
G
Dismissing the transfer petitions, the Court
HELD: 1. The upshot of the discussion is (i) that the issue
of jurisdiction of a court to try an “offence” or “offender” as well
as the issue of territorial jurisdiction, depend upon facts
established through evidence (ii) that if the issue is one of H
311
312 SUPREME COURT REPORTS [2020] 9 S.C.R.

A territorial jurisdiction, the same has to be decided with respect
to the various rules enunciated in Sections 177 to 184 of the
Code and (iii) that these questions may have to be raised before
the court trying the offence and such court is bound to consider
the same. [Para 39][324-C-D]
B 2. As seen from the pleadings, the type of jurisdictional
issue, raised in the cases on hand, is one of territorial jurisdiction.
The answer to this depends upon facts to be established by
evidence. The facts to be established by evidence, may relate
either to the place of commission of the offence or to other things
dealt with by Sections 177 to 184 of the Code. In such
C circumstances, this Court cannot order transfer, on the ground
of lack of territorial jurisdiction, even before evidence is
marshaled. [Para 41][324-E-F]
Abhiram Veer v. North Eastern Regional Agricultural
Marketing Corporation Ltd. (2000) 10 SCC 433; Asit
D Bhattacharjee v. Hanuman Prasad Ojha & Ors. (2007)
5 SCC 786 : [2007] 6 SCR 939; State of Uttar Pradesh
v. Sabir Ali AIR 1964 SC 1673 : [1964] 7 SCR 435;
Ramnath Sardar v. Rekharani Sardar (1975) Criminal
Law Journal 1139; Raj Kumari Vijh v. Dev Raj Vijh
E AIR 1977 SC 1101 : [1977] 2 SCR 997; Purushottam
Das Dalmia v. State of West Bengal AIR 1961 SC 1589:
[1962] 2 SCR 101 – referred to.
Case Law Reference
(2000) 10 SCC 433 referred to Para 15
F
[2007] 6 SCR 939 referred to Para 16
[1964] 7 SCR 435 referred to Para 29
[1977] 2 SCR 997 referred to Para 35
[1962] 2 SCR 101 referred to Para 35
G
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No.456 of 2019.
Petition filed under S.406 of the code of Criminal Procedure, 1973
r/w of Supreme Court Rules 2013 For Transfer of case being F.I.R. No.
H 452 Dated 14.09.2018.
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 313

With A
Transfer Petition (CRL.) Nos. 666 and 681 of 2019
Deepak Thukral, AAG, Vikas Singh, Neeraj Kishan Kaul, Sr. Advs,
Ms. Nandadevi Deka, Vikas Sharma, Bharat Bhushan, Ms. Divya Sharma,
Mritunjay Singh, Ms. Aakanksha Kaul, Ms. Garima Bajaj, Varun Mathur,
Akash Lamba, Sansakar Aggarwal, Manek Singh, Dr. Monika Gusain, B
Rajat Bhardwaj, Advs. for the appearing parties.
The following Judgment of the Court was delivered:
JUDGMENT
1. Seeking transfer of three criminal cases, all pending on the file C
of the Court of the Additional Judicial Magistrate, Gurugram, Haryana,
to any competent Court in New Delhi, a person who is implicated as one
of the accused in those three cases has come up with the above transfer
petitions.
2. I have heard Mr. Vikas Singh, learned Senior Counsel appearing D
for the petitioner, Mr. Deepak Thukral, learned counsel appearing for
the State of Haryana and Mr. Neeraj Kishan Kaul, learned Senior Counsel
appearing for the de facto complainant, who is the second respondent
herein.
3. The petitioner herein was appointed on 04.08.2016 as the Group E
Chief Risk Officer-Executive Director of the second respondent, which
is a non-banking finance company and which happens to be the de facto
complainant in the criminal cases whose transfer is what is sought in
these petitions. It is relevant to note that the petitioner, upon his
appointment, joined the Delhi Office of the second respondent-Company
F
on 04.08.2016 and he was transferred to Mumbai on 10.04.2017. The
petitioner resigned in July-2018.
4. Three loans sanctioned by the second respondent-Company,
during the period when the petitioner was in service, became the subject-
matter of three different complaints lodged by the second respondent-
Company. All the three complaints were lodged by the second respondent G
with the Station House Officer, Civil Lines, Gurugram P.S. For the purpose
of easy appreciation, the particulars of the loan and the borrower, as
well as the particulars of the FIR are given in the tabular column as
follows:
H
314 SUPREME COURT REPORTS [2020] 9 S.C.R.

A
S.No. FIR No. Offences Borrow Date of Amount of loan
Complained er Sanction
1. 452/2018 Sections 406, Zillion 26.10.2016 Rs.4,30,00,000/-
408, 420, 120- Infraproject
B r/w Section s Private
34 of the IPC.
Ltd.
B
2. 748/2017 114, 120-B, Al-Fatah 22.09.2019 Rs.71,50,000/-
406, 420, 467, Tours and
468, 471 and Travels
216 of t he
IPC.
3. 356/2019 Sections 120- Hotel M.S. 30.12.2016 Rs.46,00,000/-
B, 406, 408,
C 420, 387 r/w
Section 34 of
the IPC 28.12.2017 Rs.5,13,594/-

5. After completion of investigation, the police filed a charge-
sheet on 14.12.2018 in FIR No.452/18, for alleged offences under Sections
D
406, 408, 420, 120-B read with Section 34 of the Indian Penal Code
(hereinafter referred to as the “IPC”).
6. Similarly, a charge-sheet was filed on 18.07.2019 in FIR No.748
of 2017 for alleged offences under Sections 114, 120-B, 406, 420, 467,
468, 471 and 216 of the IPC. Likewise a charge-sheet was filed on
E
24.10.2019 in FIR No.356/2019 for offences under Sections 120-B, 406,
408, 420, 387 read with Section 34 of the IPC.
7. The police also filed supplementary charge-sheets, on 06.01.2020
in the first case and on 08.11.2019 in the third case.
F 8. Contending (i) that no part of the cause of action arose in
Gurugram to enable the de facto complainant to lodge a complaint in the
Gurugram Police Station; (ii) that while first loan was sanctioned at
Delhi, the second loan was sanctioned at Indore and third loan was
sanctioned at Surat, nothing happened in Gurugram, entitling the de facto
complainant to invoke the jurisdiction of the investigating agency and the
G Court in Gurugram; (iii) that the second respondent-de facto complainant
has deliberately filed the complaint at Gurugram, as the promoter of the
de facto complainant wields lot of influence at Gurugram and (iv) that
the petitioner will not get a fair trial at Gurugram, the petitioner has
come up with the above transfer petitions.
H
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 315

9. Thus, in effect, transfer is sought primarily on 2 grounds namely A
(i) lack of territorial jurisdiction and (ii) apprehension of bias.
10. But Mr. Vikas Singh, learned Senior Counsel for the petitioner
did not press into service the second ground, revolving around the
allegation that the second respondent wields a lot of influence locally in
Gurugram and that the petitioner will not get a fair trial. This saves me B
of the botheration to bring on record the transcript of certain whatsapp
messages filed before me as part of the paper book.
11. Mr. Vikas Singh, learned Senior Counsel, took me through the
loan agreements under which the second respondent-Company
sanctioned the subject loans and argued that in all the three loan C
agreements, the place of execution of the agreement, the Branch office
of the lender and the address of the borrower are indicated. For instance,
the loan agreement dated 26.10.2016 under which facilities were extended
to Zillion Infraprojects Private Limited (which forms the subject-matter
of FIR No.452/2018), the place of execution of agreement and the address
of the Branch Office of the lender are indicated to be at Delhi. The D
address of the borrower as well as the Co-borrower are also stated to
be in Delhi. The branch of the bank on which the cheque for the loan
amount was drawn was also in Delhi.
12. Similarly the loan agreement under which facilities were
extended to Hotel M.S. (which forms the subject matter of the third E
FIR) indicates the place of agreement and Branch Office of the lender
to be Indore. The address of the borrower is also stated therein to be in
Indore. The address of the lender is indicated to be in Bombay.
13. Insofar as the loan agreement under which facilities were
extended to Al Fatah Tours and Travels (forming the subject matter of F
second FIR) is concerned, the place of the agreement and the Branch
Office of the lender are stated to be at Surat. The address of the borrower
is indicated to be in Surat and the address of the lender is stated to be in
Mumbai.
14. Therefore, it was contended by Mr. Vikas Singh, learned Senior G
Counsel for the petitioner that the entire cause of action in respect of
one case arose in Delhi, the entire cause of action for the second case
arose in Indore and the entire cause of action for the third case arose in
Surat. It is also contended by him that the de facto complainant did not
even have an office at Gurugram and that the second respondent is
H
316 SUPREME COURT REPORTS [2020] 9 S.C.R.

A guilty of perjury by claiming even before this Court, as though they have
an office in Gurugram. The petitioner has also taken out an application
under Section 340 of the Code of Criminal Procedure for prosecuting
the officials of the second respondent for committing perjury through
their claim that the second respondent has an office at Gurugram.
B 15. Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing
for the second respondent contended that the question whether any part
of the cause of action arose within the local limits of jurisdiction of the
Courts in Gurugram, is a question of fact to be established by evidence
and that the same cannot be gone into in the transfer petitions. In support
of this proposition, he relied upon the decision of this Court in Abhiram
C Veer Vs. North Eastern Regional Agricultural Marketing
Corporation Ltd.1 He also contended that insofar as the loan granted to
Zillion Infraprojects limited is concerned, the property offered as security
is located in Gurugram and that the second respondent was actually
sharing the office space of a company which is a 100% subsidiary of the
D second respondent. Therefore, it is his contention that no wrong statement
was ever made. It is further contended that the borrowers who are also
the prime accused in these cases have not sought a transfer and that
therefore the petitioner is not entitled to seek transfer.
16. The learned Standing Counsel for the State of Haryana
supplemented the arguments of the learned Senior Counsel for the second
E
respondent and relied upon the decision of this Court in Asit
Bhattacharjee Vs. Hanuman Prasad Ojha &Ors.2
17. I have carefully considered the rival contentions.
18. As seen from the pleadings and the rival contentions, the
F petitioner seeks transfer, primarily on the ground of lack of territorial
jurisdiction. While the question of territorial jurisdiction in civil cases,
revolves mainly around (i) cause of action; or (ii) location of the subject
matter of the suit or (iii) the residence of the defendant etc., according
as the case may be, the question of territorial jurisdiction in criminal
Cases revolves around (i) place of commission of the offence or (ii)
G place where the consequence of an act, both of which constitute an
offence, ensues or (iii) place where the accused was found or (iv) place
where the victim was found or (v) place where the property in respect
of which the offence was committed, was found or (vi) place where the
1
2000 (10) SCC 433.
2
H 2007 (5) SCC 786
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 317

property forming the subject matter of an offence was required to be A
returned or accounted for, etc., according as the case may be.
19. While jurisdiction of a civil court is determined by(i) territorial
and (ii) pecuniary limits, the jurisdiction of a criminal court is determined
by (i) the offence and/or (ii) the offender. But the main difference between
the question of jurisdiction raised in civil cases and the question of B
jurisdiction arising in criminal cases, is two-fold.
(i) The first is that the stage at which an objection as to
jurisdiction, territorial or pecuniary, can be raised, is regulated in
civil proceedings by Section 21 of the Code of Civil Procedure, 1908.
There is no provision in the Criminal Procedure Code akin to Section 21 C
of the Code of Civil Procedure.
(ii) The second is that in civil proceedings, a plaint can be returned,
under Order VII, Rule 10, CPC,to be presented to the proper court, at
any stage of the proceedings. But in criminal proceedings, a limited
power is available to a Magistrate under Section 201 of the Code, to D
return a complaint. The power is limited in the sense (a) that it is
available before taking cognizance, as Section 201 uses the words
“Magistrate who is not competent to take cognizance”and (b) that
the power is limited only to complaints, as the word “complaint”, as
defined by section 2(d), does not include a “police report”.
E
20. Chapter XIII of the Code of Criminal Procedure, 1973 contains
provisions relating to jurisdiction of criminal Courts in inquiries and trials.
The Code maintains a distinction between (i) inquiry; (ii) investigation;
and (iii) trial. The words “inquiry” and “investigation” are defined
respectively in clauses (g) and (h) of Section 2 of the Code.
F
21. The principles laid down in Sections 177 to 184 of the Code
(contained in Chapter XIII) regarding the jurisdiction of criminal Courts
in inquiries and trials can be summarized in simple terms as follows:
(1) Every offence should ordinarily be inquired into and tried by a
Court within whose local jurisdiction it was committed. This rule is found
G
in Section 177. The expression “local jurisdiction” found in Section
177 is defined in Section 2(j) to mean “in relation to a Court or Magistrate,
the local area within which the Court or Magistrate may exercise all or
any of its or his powers under the Code”
(2) In case of uncertainty about the place in which, among the
several local areas, an offence was committed, the Court having H
318 SUPREME COURT REPORTS [2020] 9 S.C.R.

A jurisdiction over any of such local areas may inquire into or try such an
offence.
(3) Where an offence is committed partly in one area and partly
in another, it may be inquired into or tried by a Court having jurisdiction
over any of such local areas.
B (4) In the case of a continuing offence which is committed in
more local areas than one, it may be inquired into or tried by a Court
having jurisdiction over any of such local areas.
(5) Where an offence consists of several acts done in different
local areas it may be inquired into or tried by a Court having jurisdiction
C over any of such local areas. (Numbers 2 to 5 are traceable to Section
178)
(6) Where something is an offence by reason of the act done, as
well as the consequence that ensued, then the offence may be inquired
into or tried by a Court within whose local jurisdiction either the act was
D done or the consequence ensued. (Section 179)
(7) In cases where an act is an offence, by reason of its relation
to any other act which is also an offence, then the first mentioned offence
may be inquired into or tried by a Court within whose local jurisdiction
either of the acts was done. (Section 180)
E
(8) In certain cases such as dacoity, dacoity with murder, escaping
from custody etc., the offence may be inquired into and tried by a Court
within whose local jurisdiction either the offence was committed or the
accused person was found.
(9) In the case of an offence of kidnapping or abduction, it may
F
be inquired into or tried by a Court within whose local jurisdiction the
person was kidnapped or conveyed or concealed or detained.
(10) The offences of theft, extortion or robbery may be inquired
into or tried by a Court within whose local jurisdiction, the offence was
committed or the stolen property was possessed, received or retained.
G
(11) An offence of criminal misappropriation or 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 was
received or retained or was required to be returned or accounted for by
the accused person.
H
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 319

(12) An offence which includes the possession of stolen property, A
may be inquired into or tried by a Court within whose local jurisdiction
the offence was committed or the stolen property was possessed by any
person, having knowledge that it is stolen property. (Nos. 8 to 12 are
found in Section 181)
(13) An offence which includes cheating, if committed by means B
of letters or telecommunication messages, may be inquired into or tried
by any Court within whose local jurisdiction such letters or messages
were sent or received.
(14) An offence of cheating and dishonestly inducing delivery of
the property may be inquired into or tried by a Court within whose local C
jurisdiction the property was delivered by the person deceived or was
received by the accused person.
(15) Some offences relating to marriage such as Section 494,
IPC (marrying again during the life time of husband or wife) and Section
495, IPC (committing the offence under Section 494 with concealment D
of former marriage) may be inquired into or tried by a Court within
whose local jurisdiction the offence was committed or the offender last
resided with the spouse by the first marriage. (Nos. 13 to 15 are found
in Section 182)
(16) An offence committed in the course of a journey or voyage E
may be inquired into or tried by a Court through or into whose local
jurisdiction that person or thing passed in the course of that journey or
voyage. (Section 183).
(17) Cases falling under Section 219 (three offences of the same
kind committed within a space of twelve months whether in respect F
of the same person or not), cases falling under Section 220 (commission
of more offences than one, in one series of acts committed together as
to form the same transaction) and cases falling under Section 221, (where
it is doubtful what offences have been committed), may be inquired into
or tried by any Court competent to inquire into or try any of the offences.
(Section 184). G
21. Apart from Sections 177 to 184, which lay down in elaborate
detail, the rules relating to jurisdiction, Chapter XIII of the Code also
contains a few other sections. Section 185 empowers the State
Government to order any case or class of cases committed for trial in
any district, to be tried in any Sessions division. Section 186 empowers H
320 SUPREME COURT REPORTS [2020] 9 S.C.R.

A the High Court, in case where 2 or more courts have taken cognizance
of the same offence and a question as to which of them should inquire
into or try the offence has arisen, to decide the district where the inquiry
or trial shall take place. Section 187 speaks of the powers of the
Magistrate, in case where a person within his local jurisdiction, has
committed an offence outside his jurisdiction, but the same cannot be
B
inquired into or tried within such jurisdiction. Sections 188 and 189 deal
with offences committed outside India.
22. After laying down in such great detail, the rules relating to
territorial jurisdiction in Chapter XIII, the Code of Criminal Procedure
makes provisions in Chapter XXXV, as to the fate of irregular proceedings.
C It is in that Chapter XXXV that one has to search for an answer to the
question as to what happens when a court which has no territorial
jurisdiction, inquires or tries an offence.
23. Section 460 lists out 9 irregularities, which, if done in good
faith by the Magistrate, may not vitiate his proceedings. Section 461 lists
D out 17 irregularities, which if done by the Magistrate, will make the whole
proceedings void. Clause (l) of section 461 is of significance and it reads
as follows:-
“If any Magistrate, not being empowered by law in this behalf,
does any of the following things, namely:-
E —————
(l) tries an offender:
—————
his proceedings shall be void”
F 24. Then comes Section 462, which saves the proceedings that
had taken place in a wrong sessions division or district or local area. But
this is subject to the condition that no failure of justice has occasioned on
account of the mistake. Section 462 reads as follows:
“462. Proceedings in wrong place. –
G No finding, sentence or order of any Criminal Court shall be
set aside merely on the ground that the inquiry, trial or other
proceedings in the course of which it was arrived at or passed,
took place in a wrong sessions division, district, sub- division
or other local area, unless it appears that such error has in
fact occasioned a failure of justice.”
H
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 321

25. A cursory reading of Section 461(l) and Section 462 gives an A
impression that there is some incongruity. Under Clause (l) of Section
461 if a Magistrate not being empowered by law to try an offender,
wrongly tries him, his proceedings shall be void. A proceeding which is
void under Section 461 cannot be saved by Section 462. The focus
of clause (l) of Section 461 is on the “offender” and not on the “offence”.
B
If clause (l) had used the words “tries an offence” rather than the words
“tries an offender”, the consequence might have been different.
26. It is significant to note that Section 460, which lists out nine
irregularities that would not vitiate the proceedings, uses the word
“offence” in three places namely clauses (b), (d) and (e). Section 460
does not use the word “offender” even once. C

27. On the contrary Section 461 uses the word ‘offence’ only
once, namely in clause (a), but uses the word “offender” twice namely
in clauses (l) and (m). Therefore, it is clear that if an offender is tried by
a Magistrate not empowered by law in that behalf, his proceedings shall
be void under Section 461. Section 462 does not make the principle D
contained therein to have force notwithstanding anything contained in
Section 461.
28. Section 26 of the Code divides offences into two categories
namely (i) offences under IPC and (ii) offences under any other special
law. Insofar as offences under the IPC are concerned, Clause (a) of E
Section 26 states that they may be tried by (i) the High Court or (ii) the
Court of Session or (iii) any other Court, by which such offence is shown
in the first Schedule to be triable. In respect of offences under any other
law, clause (b) of Section 26 states that they shall be tried by the Court
specifically mentioned in such special law. In case the special law is F
silent about the Court by which it can be tried, then such an offence may
be tried either by the High Court or by any other Court by which such
offence is shown in the first schedule to be triable.
29. But Clause (a) of Section 26 makes the provisions contained
therein, subject to the other provisions of the Code. Therefore, a question G
arose before this Court in the State of Uttar Pradesh Vs. Sabir Ali3 as
to whether a conviction and punishment handed over by a Magistrate of
first class for an offence under the Uttar Pradesh Private Forest Act,
1948 were void, in the light of Section 15(2) of the Special Act. Section
3
AIR 1964 SC 1673 H
322 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 15(2) of Uttar Pradesh Private Forest Act made the offences under the
Act triable only by a Magistrate of second or third class. Though the
entire trial in that case took place before a Magistrate of second class,
he was conferred with the powers of a Magistrate of first class, before
he pronounced the Judgment. This Court held that the proceedings were
void under Section 530(p) of the Code of Criminal Procedure, 1898 (as
B
it stood at that time). It is relevant to note that Section 461(l) of the
Code of 1973 is in pari materia with Section 530(p) of the Code of
1898.
30. What is now clause (a) of Section 26 of the Code of 1973, is
what was Section 28 of the Code of 1898. The only difference between
C the two is that Section 28 of the Code of 1898 referred to the eighth
column of the second schedule, but Section 26(a) of the Code of 1973
refers to the first schedule.
31. Similarly, clause (b) of Section 26 of the Code of 1973 is
nothing but what was Section 29 of the Code of 1898.
D
32. What is significant to note from the Code of 1898 and the
Code of 1973 is that the question of jurisdiction dealt with by Sections 28
and 29 of the Code of 1898 and Section 26 of the Code of 1973, is
relatable only to the offence and not to the offender. The power of a
Court to try an offence is directly governed by Clauses (a) and (b) of
E Section 26 of the Code of 1973, as it was governed by Sections 28 and
29 of the Code of 1898.
33. In other words, the jurisdiction of a criminal Court is normally
relatable to the offence and in some cases, to the offender, such as
cases where the offender is a juvenile (section 27) or where the victim
F is a women [the proviso to clause (a) of section 26]. But Section 461(l)
focuses on the offender and not on the offence.
34. The saving clause contained in Section 462 of the Code of
1973 is in pari materia with Section 531 of the Code of 1898. In the
light of Section 531 of the Code of 1898, a question arose before the
G Calcutta High Court in Ramnath Sardar Vs. Rekharani Sardar4, as
to the stage at which an objection to the territorial jurisdiction of the
court could be raised and considered. In that case, the objection to the
territorial jurisdiction raised before a Magistrate in a petition for

4
H (1975) Criminal Law Journal 1139
KAUSHIK CHATTERJEE v. STATE OF HARYANA & ORS. 323

maintenance filed by the wife against the husband, was rejected by the A
Magistrate both on merits and on the basis of the saving clause in Section
531. But the High Court held that Section 531 would apply only after the
decision or finding or order is arrived at by any Magistrate or Court in a
wrong jurisdiction and that if any objection to the territorial jurisdiction is
taken in any proceeding, it would be the duty of the Magistrate to deal
B
with the same.
35. In Raj Kumari Vijh Vs. Dev Raj Vijh5, which also arose out
of a case filed by the wife for maintenance against the husband, the
Magistrate rejected a prayer for deciding the question of jurisdiction
before recording the evidence. Actually the Magistrate passed an order
holding that the question of jurisdiction must await the recording of the C
evidence on the whole case. Ultimately the Magistrate held that he had
jurisdiction to entertain the application. One of the reasons why he came
to the said conclusion was that in the reply filed by the husband there
was no specific denial of the wife’s allegation that the parties last resided
together within his jurisdiction. When the matter eventually reached this D
Court, this Court relied upon the decision in Purushottam Das Dalmia
Vs. State of West Bengal6 to point out that there are two types of
jurisdictional issues for a criminal Court namely (i) the jurisdiction with
respect of the power of the Court to try particular kinds of offences and
(ii) its territorial jurisdiction.
E
36. It was specifically held by this Court in Raj Kumari Vijh
(supra) that the question of jurisdiction with respect to the power of the
Court to try particular kinds of offences goes to the root of the matter
and that any transgression of the same would make the entire trial void.
However, territorial jurisdiction, according to this Court “is a matter of
convenience, keeping in mind the administrative point of view with respect F
to the work of a particular court, the convenience of the accused and
the convenience of the witnesses who have to appear before the Court.”
37. After making such a distinction between two different types
of jurisdictional issues, this Court concluded in that case, that where a
Magistrate has the power to try a particular offence, but the controversy G
relates solely to his territorial jurisdiction, the case would normally be
covered by the saving clause under Section 531 of the Code of 1898
(present Section 462 of the Code of 1973).
5
AIR 1977 SC 1101
6
AIR 1961 SC 1589 H
324 SUPREME COURT REPORTS [2020] 9 S.C.R.

A 38. From the above discussion, it is possible to take a view that
the words “tries an offence” are more appropriate than the words “tries
an offender” in section 461 (l). This is because, lack of jurisdiction to try
an offence cannot be cured by section 462 and hence section 461,
logically, could have includedthe trial of an offence by a Magistrate,
not empowered by law to do so,as one of the several items which make
B
the proceedings void.In contrast, the trial of an offender by a court
which does not have territorial jurisdiction, can be saved because of
section 462, provided there is no other bar for the court to try the said
offender (such as in section 27). But Section 461 (l) makes the proceedings
of a Magistrate void, if he tried an offender, when not empowered by
C law to do.
39. But be that as it may, the upshot of the above discussion is (i)
that the issue of jurisdiction of a court to try an “offence” or “offender”
as well as the issue of territorial jurisdiction, depend upon facts established
through evidence (ii) that if the issue is one of territorial jurisdiction, the
D same has to be decided with respect to the various rules enunciated in
sections 177 to 184 of the Code and (iii) that these questions may have
to be raised before the court trying the offence and such court is bound
to consider the same.
40. Having taken note of the legal position, let me now come back
E to the cases on hand.
41. As seen from the pleadings, the type of jurisdictional issue,
raised in the cases on hand,is one of territorial jurisdiction, atleast as of
now. The answer to this depends upon facts to be established by evidence.
The facts to be established by evidence, may relate either to the place of
F commission of the offence or to other things dealt with by Sections 177
to 184 of the Code. In such circumstances, this Court cannot order
transfer,on the ground of lack of territorial jurisdiction, even before
evidence is marshaled. Hence the transfer petitions are liable to be
dismissed. Accordingly, they are dismissed.

G 42. However, it is open to both parties to raise the issue of territorial
jurisdiction, lead evidence on questions of fact that may fall within the
purview of Sections 177 to 184 read with Section 26 of the Code and
invite a finding. With the above observations the transfer petitions are
dismissed. There will be no order as to costs.

H Ankit Gyan Transfer Petitions dismissed.