Aashiq Ahamed v. State of Haryana and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942 ## W.A. No. 288 OF 2021 [WRIT APPEAL FILED UNDER SECTION 5 OF THE HIGH COURT ACT AGAINST THE JUDGMENT DATED 04.01.2021 IN WP(C) 33768/2019(U)] ## APPELLANT/PETITIONER IN THE WRIT PETITION: AASHIQ AHAMED, AGED 29 YEARS, S/O. A. IBRAHIM, R/O. 16/282 ASHIAYAN, OPPOSITE TO POLYCLINIC HOSPITAL, KALMANDAPAM, PALAKKAD, KERALA - 678013. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE ## RESPONDENTS/RESPONDENTS: |1|STATE OF HARYANA,| |---|---| ||REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,| ||GOVERNMENT OF HARYANA, ROOM NO.48, 6TH FLOOR,| ||HARYANA CIVIL SECRETARIAT, SECTOR -1,| ||CHANDIGARH, PIN - 160 001.| |2|COMMISSIONER OF POLICE,| ||COMMISSIONERATE OF POLICE, SHANTI NAGAR,| ||SHIVAJI NAGAR, SECTOR 11, GURUGRAM, HARYANA - 122 018.| |3|THE STATION HOUSE OFFICER,| ||CYBER POLICE STATION, HARIZAN COLONY, DLF PHASE 5,| ||SECTOR 43, GURUGRAM, HARYANA - 122 002.| |4|ASSISTANT SUB-INSPECTOR (ASI),| ||CYBER POLICE STATION, HARIZAN COLONY, DLF PHASE 5,| ||SECTOR 43, GURUGRAM, HARYANA - 122 002.| |5|HDFC BANK,| ||CHANDRANAGAR BRANCH, PALAKKAD,| ||REPRESENTED BY ITS MANAGER, 12/799,| ||CHEMBALODE, PALAKKAD, TRICHUR BYPASS,| ||CHANDRANAGAR, PALAKKAD, KERALA - 678 007.| W.A.288/21 2 R5 BY ADV. SRI. P. BINNY JOSEPH, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.288/21 3 ## **JUDGMENT** Dated this the 9[th] day of February, 2021 ## **S. Manikumar, CJ** Instant writ appeal is filed against the judgment dated 04.01.2021 in W.P.(C) No.33768 of 2019, by which, a learned single Judge of this Court dismissed the writ petition observing thus: “An order under Section 102 Cr.P.C. issued by Gurgaon Police Station in State of Haryana is under challenge under this writ petition. It is an order passed by a police station in the state of Haryana. The same has to be challenged as per the lux fori and lux loci. The mere fact that the amount outstanding with a bank situated in Kerala will not confer any jurisdiction to challenge the same before this court. Without prejudice to the right of parties to agitate their grievance as per the lux fori and lux loci, the present writ petition is hereby dismissed for want of jurisdiction.” 2. Facts leading to the filing of this appeal are, appellant is the writ petitioner in W.P.(C) No.33768 of 2019. He is aggrieved by the order passed by the Haryana Police, freezing his current bank account at HDFC Bank, Palakkad Branch, 5[th] respondent. ## 3. Appellant/writ petitioner is a resident of Kalmandapam, Palakkad, Kerala, and runs business. He had been a bitcoin (a virtual currency) trader since 2014. He used a current bank account bearing Account W.A.288/21 4 No.50200013037821, opened in the 5[th] respondent bank, Chandranagar Branch in Palakkad, for all the transactions. That bank account has become suddenly inaccessible to the appellant on 17.08.2019, without any prior notice or information. All that was informed by the bank officials to the appellant was that an officer from the Gurgaon Police, Haryana had contacted and told them to freeze the appellant's account. It is unconscionable that the bank even refused to divulge the details of the communication received from the Gurgaon Police. 4. On enquiry over phone, a Police Officer told the appellant that a complaint was received by Gurgaon Police against him for alleged fraudulent transfer of money. The said police personnel also told the appellant that he is indulging in bitcoin trades, which is illegal in India and hence, the police is contemplating further legal actions. He tried to convince the Police Officer that though bitcoin in India is not regulated by any specific law, it is not a banned trade or business either. But, unfortunately his request fell on deaf ears. The Police Officer further clarified that not even an FIR is registered based on the said complaint. But, he refused to provide names of the complainants, their details etc. 5. Appellant has further stated that despite repeated requests, the 5[th] respondent bank finally transmitted Exhibit-P6 order passed by the W.A.288/21 5 Station House Officer, Cyber Police Station, Haryana, dated 25.07.2019, which states that the Haryana Police has received a Cyber Crime Complaint dated 29.06.2019 that the appellant's bank account has been used to cheat innocent people. It is pertinent to note that the notice is silent as to whether a crime has been registered and that the notice does not disclose any other details regarding the complaint nor does it mention who is the complainant. Being aggrieved, the appellant has filed the writ petition for the following reliefs: - i) declare that Exhibit-P6 notice issued by the 3[rd] respondent is illegal, unconstitutional, and void; - ii) declare that no power subsists under Section 91 of the Cr.P.C, to consider or direct a debit-freeze of bank account by the police personnel and hence, Exhibit-P6 is unauthorised and without the sanction of law; - iii) issue a writ of certiorari or any other appropriate writ, direction or order quashing Exhibit-P6 notice issued by the 3[rd] respondent; - iv) issue a writ of mandamus or any appropriate writ, direction or order, commanding the 5[th] respondent to de-freeze the petitioner's bank account No.50200013037821 held in its Chandranagar Branch, Palakkad; 6. After considering the submissions and materials on record, the writ court dismissed the writ petition, holding that this court lacked W.A.288/21 6 territorial jurisdiction to hear the matter as per lex fori and lex loci. Being aggrieved, the appellant has filed the appeal on the following grounds. - A. The impugned judgment is not sustainable in law. Writ court erred in holding that the High Court of Kerala lacked territorial jurisdiction to hear the dispute canvassed in the writ petition. - B. Referring to Article 226(2) of the Constitution of India, appellant has contended that the writ court failed to appreciate that the High Court has the necessary territorial jurisdiction to entertain the writ petition. - C. He further contended that even if a part of cause of action arises within territories to which the jurisdiction of this Court would extend to, this Court would have territorial, as well as subject matter jurisdiction over the dispute, notwithstanding the fact that the seat of Government or authority whose action is impugned does not lie within the territories over which the jurisdiction of the High Court is exercised. - D. Appellant has submitted that the bank account being situated within the territorial limits of Kerala and is interfered by the executive action, thereby bringing the cause of action within the limits of territorial jurisdiction of this Court. Relying on the definition given to 'cause of action' in **Read v. Brown** [(1888) 22 QBD 128], by Lord Esher MR appellant has submitted that 'any fact which is necessary to be proved in order to support his right to the judgment of the court', it has to be concluded that the necessary cause W.A.288/21 7 of action (or at least a part of it) has certainly arisen in Palakkad, Kerala as the bank account located there belonged to the appellant was illegally interfered by way of an executive action which was impugned in the writ petition. The crime alleged in the case on hand is that his bank account in Kerala, has been 'used to cheat innocent people'. Thus, the crime has happened within the territories of Kerala, placing the cause of action within the territorial limits over which the High Court of Kerala can exercise jurisdiction. - E. Appellant has also placed reliance on the decisions in **Kusum Ingots and Alloys Ltd. v. Union of India** [(2004) 6 SCC 254], **Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors.** [(1994) 4 SCC 711], **Anand Anoop v. Union of India** [(2014) 3 KLT 171], and **Navinchandra N. Majithia v. State of Maharastra** [(2000) 7 SCC 640, to substantiate his contentions. 7. Based on the above grounds, learned counsel for the appellant made submissions. 8. Heard the learned counsel for the parties and perused the material on record. 9. Exhibit-P6 is the impugned notice issued under Section 91 of the Code of Criminal Procedure, to the Branch / Legal Head, HDFC Bank, Palakkad Chandranagar, Palakkad, Kerala dated 25.07.2019, by the Cyber Crime Police Station, Gurugram, Haryana and it reads thus: W.A.288/21 8 ## “ - Notice 91 CrPc Most Urgent To The Branch / Legal Head HDFC Bank, Palakkad Chandranagar, Palakkad, Kerala. ## Dear Sir/Madam, We are the Law Enforcement Agency of Gurugram, Haryana (India). This is regarding a Cyber Crime Case/Comp. No. 2597-5P II, Dt. 29.06.2019, Police Station cyber crime Gurugram, in which the below mentioned Bank Account used to cheat the innocent people. Hence, you are hereby requested to provide us the following information about this account at the earliest. ## HDFC Bank A/c:502000013037821 IFSC Code: HDFC0000117 1. Account opening form along with all supporting documents. 2. Transaction detail from opening the account to till date. 3. Name, address, contact no. & e-mail ID of account holder. 4. If the money has been transferred IMPS/NEFT in other accounts then do provide us the beneficiary details. 5. If there is any online transaction then do provide us the IP details along with date & time. 6. Please Also DO debit freeze the account with immediate effect. 7. Any other relevant information regarding this account which is helpful investigation THIS INFORMATION IS NOT SHARE WITH ACCOUNT HOLDER. ITS PROCESS OF UNDER INVESTIGATION. We seek this information as per section 91 CrPc. Looking forward to an early response. DATE: 25-07-2019 Insp. Suresh Kumar Cyber Crime Police Station SEC 43 DLF Ph-5 Gurugram.” W.A.288/21 9 ## 10. Section 91 of the Code of Criminal Procedure, 1973 reads thus: ## “ **91. Summons to produce document or other thing** . (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- - (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or - (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.” ## 11. Article 226 of the Constitution of India reads thus: “226. Power of High Courts to issue certain writs (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or W.A.288/21 10 authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) 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 exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) xx xxx xxxx (4) xx xxx xxxx” 12. On an analysis of Article 226 of the Constitution , it is clear that the maintainability or otherwise of the writ petition in the High Court depends upon whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that High Court. Insofar 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. 13. Even though clause (2) of Article 226 of the Constitution specifies that the High Court is conferred with jurisdiction to pass any W.A.288/21 11 orders irrespective of the seat of such Government or authority, it can only be done when a part of the substantive cause of action takes place within the jurisdiction of the High Court. Merely because, the appellant is a resident of Kerala and the bank where he holds an account is situated within the territorial limits of this Court, that does not mean that a part of cause of action of the crime has arisen within the jurisdiction of this Court. Moreover, the contentions raised in the writ petition are not elaborate enough to identify as to whether any part of cause of action has arisen within the State of Kerala. 14. Section 91 of the Cr.P.C., extracted above, would make it clear that it is a step taken by a court or any officer in charge of a police station, during the process of any enquiry, trial or investigation, if any document is found to be necessary , in order to proceed with the enquiry, trial or investigation , in a fruitful and effective manner. It is true, ExhibitP6 is issued under Section 91. However, as per the said order, the Branch/Legal Head of HDFC Bank, Palakkad Branch was directed to produce certain documents essential for proceeding with investigation by the Cyber Crime Police Station, Gurgaon, Haryana in Crime Case/Comp. No.2597-5P II, Dt. 29.06.2019. The intention of the Cyber Crime Police is to investigate into the complaint received by them at Haryana, and in that W.A.288/21 12 process, the bank was directed to freeze the account with immediate effect. Which thus means, the proceeds in the account is the subject matter of the inquiry or investigation by the Cyber Crime Police, Gurgaon in a complaint received there. 15. It is significant to note that if the appellant was in any manner aggrieved by the action of the Cyber Crime Police Station, Gurgaon, he has to approach the police or the jurisdictional court at Haryana, in order to secure any reliefs. Merely because the Cyber Crime Police Station, Gurgaon has issued summons/ order to the HDFC Bank, Palakkad to produce certain documents, and to freeze the Bank account, that will not confer any jurisdiction to the courts in Kerala since issuance of a summons/ order by the police from Haryana is not a part of the cause of action but that is done to proceed with the investigation which is the core of the power exercised by the investigating officer and the investigation of the complaint is the entirety of the cause of action, which is not leaving any part of the cause of action in the State of Kerala, even assuming that the investigation may stretch to the state of Kerala at a later point of time. 16. Reading of Article 226 of the Constitution of India also makes it clear that every High Court is conferred with jurisdiction to deal and tackle with any situation that takes place within its territorial jurisdiction. It is W.A.288/21 13 true if a part of the cause of action of the complaint or crime has taken place within the State of Kerala, the High Court of Kerala may have the jurisdiction to entertain a writ petition under Article 226 of the Constitution. But, here is a case where a complaint was lodged before the Cyber Crime Police Station, Gurgaon, Haryana, probably by a native of Haryana in regard to any transaction that has taken place in Haryana. 17. Merely because the appellant holds an account at the HDFC Bank, Palakkad Branch that does not mean that a part of the cause of action has arisen within the jurisdiction of the High Court of Kerala. Merely because a summon / order was issued under Section 91 of the Cr.P.C. to a bank situated in Kerala, it can never be said that a part of cause of action has arisen in the State of Kerala. This we say because apparently the entire action leading to the complaint had taken place within the limits of Cyber Crime Police Station, Gurgaon, Haryana. 18. One of the contentions put forth by the appellant is that the summons/ order issued by the Cyber Crime Police Station, Gurgaon, does not mention about the details of the complaint, enabling him to seek any relief before any court at Haryana. But, that is not a matter to be considered by this Court, since the subject matter comes with the realm of the courts at Haryana, and if at all there is any illegality in the proceedings W.A.288/21 14 initiated by the Cyber Crime Police Station, Gurgaon, in Crime Case/Comp. No.2597-5P II, Dt. 29.06.2019, that would not confer jurisdiction to the Court to entertain a writ petition and make efforts to identify, as to whether, there is any illegality in the said proceedings. Above all, if a crime has taken place within the limits of a police station, it has got absolute jurisdiction to investigate into the complaint, by exercising the power conferred under the provisions of the Code of Criminal Procedure, 1973, and normally and ordinarily, no court would interfere with the investigation. The case at hand is not different from that normal rule. 19. It is also pointed out by the appellant that there is no FIR registered, which is quite discernible from Exhibit-P6 order issued by the Cyber Crime Police Station, Gurgaon. In our considered opinion, the same is also a subject matter of illegality alleged by the appellant against the police, which is an aspect to be deciphered and adjudicated by the courts at Haryana. 20. Taking into account the aforesaid legal and factual aspects, we are of the considered view that the appellant has not made out a case justifying interference with the impugned judgment of the learned Single Judge, since he could not establish any jurisdictional error in exercising the power conferred under Article 226 of the Constitution of India. W.A.288/21 15 Upshot of the above discussion is that the writ appeal fails and accordingly, it is dismissed. No costs. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P.CHALY JUDGE** krj //TRUE COPY// P.A. TO C.J.