Article 226(2) And Criminal Jurisprudence: Navigating Civil Law Concept Of Cause of Action

A key issue that arises in this context is the application of the concept of “cause of action” under Article 226(2) to criminal proceedings. Traditionally rooted in civil law, the doctrine of “cause of action” is largely unfamiliar to criminal jurisprudence, raising significant concerns about its appropriateness and applicability in criminal matters and necessitating a careful and nuanced interpretation. Constitutional courts in India have addressed this issue through a series of judicial pronouncements, attempting to reconcile the civil law concept with the requirements of criminal justice, such as by equating it with the place of occurrence or the place where the FIR is lodged. Despite these efforts, a lack of complete clarity persists, and the jurisprudence in this area continues to evolve, calling for deeper analysis and more definitive judicial guidance.

CAUSE OF ACTION UNDER ARTICLE 226(2)

Cause of Action in legal sense means every fact which it would be necessary for plaintiff to prove, if transversed, in order to support his right to judgement of Court.¹ This was formally incorporated through the 15th Constitutional Amendment. However, even prior to this development, the issue of extra-territorial jurisdiction of High Courts arose in a landmark Constitutional 5-Judges Bench judgment of the Supreme Court in 1953.² In that case, the respondent, an elected Member of the Legislative Assembly, had been convicted and sentenced to seven years of rigorous imprisonment. Subsequently, the Governor of Madras approached the Election Commission, whose office was located in New Delhi, seeking clarification on whether a convicted MLA was eligible to vote in the Assembly. In response, the respondent approached the Madras High Court under the then Article 226, seeking to restrain the Election Commission from conducting such an inquiry. The Supreme Court held that the Madras High Court lacked jurisdiction to issue a writ against the Election Commission, as, at that time, writ jurisdiction was limited to authorities or persons residing or located within the territorial boundaries of the concerned High Court. Further, the apex Court observed that the concept of cause of action in inapplicable to writs as the concept is limited to suits because of the statutory provisions made thereof.

Again in 1961, a similar issue came before 7-Judge Bench of Apex Court³, wherein the appellant was holding the rank of Lieutenant Colonel in Jammu and Kashmir. Meanwhile, by a letter issued by central government, he was prematurely retired holding him in contravention of Article 16(1) of the Constitution of India. The petitioner filed a writ petition against the Union of India under Article 226, which was held to be non-maintainable by the Jammu and Kashmir High Court on the ground that it fell outside its territorial jurisdiction. The Supreme Court, relying on its earlier 1953 judgment, affirmed that the jurisdiction of a High Court under Article 226 is determined not by the residence or location of the person affected, but by the location of the authority or person passing the impugned order. The Apex Court further clarified that the concept of “cause of action” is inapplicable to Article 226 proceedings, as these involve special remedies, and the governing requirement is that the authority in question must lie within the territorial jurisdiction of the concerned High Court.

Thus, Article 226 in its original form was in causing hardship to litigants across India, as every time when an action was initiated by an authority sitting in Delhi, they have to travel to Punjab High Court (before formation of Delhi High Court) for further relief. To cure this defect, the concept of “Cause of Action” was introduced in the Article 226 of the Constitution but with its application to the extra territorial jurisdiction of the concerned High Court. By virtue of the aforesaid Constitutional Amendment, the jurisdiction was expanded on the basis of Cause of Action (in-part or full).

In Criminal jurisprudence, the “place of occurrence” of an offence is normally a norm which cannot be equated with the civil “cause of action”. The Supreme Court in 1999⁴ held that the concept of “cause of action” is alien to criminal law. In the present case, the offence was committed in Daman, after which the accused was transferred to Arunachal Pradesh. The accused then filed a petition before Gauhati High Court under Article 226(2) seeking quashing of a FIR registered in Maharashtra, contending that part of the cause of action had arisen in Arunachal Pradesh, thereby conferring jurisdiction on its High Court. Rejecting this contention, the Apex Court held that the Single Judge's decision, later affirmed by the Division Bench, was erroneous in assuming jurisdiction on the basis that part of the cause of action arose in Arunachal Pradesh.

Apex Court in another landmark case⁵, for the first time threw some light on the concept of “Cause of Action” in context of Article 226(2), wherein it focussed on the misuse of the Cause of Action by the litigants at their own convenience by connecting the main cause of action with a trivial or unconnected cause happened at the territorial limits of the court of convenience. The Facts of the case were such that the appellant filed the writ petition before Bombay High Court for quashing the complaint lodged at Shillong or transfer the investigation from Shillong to Maharashtra. Bombay High Court dismissed the petition for want of jurisdictions as part of the offence had happened in Bombay and part of offence had happened in Shillong. Apex Court held that as the part of the offence has occurred in Maharashtra, hence Bombay High Court has jurisdiction to hear the matter. Thus, in the instant case Supreme court compared the Cause of Action to Place of Occurrence. Apex Court in 2009, upheld its earlier stance and again equated place of occurrence to the Cause of Action and held Bombay High Court correct in refusing to entertain the plea to quash a FIR registered in Ranchi or to transfer it from Ranchi to the Bombay High Court's jurisdiction.⁶

However, the setback judgement came in 2014,⁷ wherein a 3-Judge bench of Apex Court came heavily on the earlier judgements wherein it criticized on equating the civil law concept of Cause of Action to Criminal Law concept of place of occurrence in context of Article 226(2).

Apex Court observed that such inference has led to the confusion and multiplicity of the proceedings which had led to the abuse of process and made legal proceedings as a device of harassment. However, via this judgement, Apex Court did not completely overrule the earlier judgements.

In 2007, in a case before Kerala High Court,⁸ similar issue came up again in regard to the issue of Cause of Action, wherein Court refused to accept the place of occurrence as the cause of action, rather relied upon the place of taking cognizance by the court as the cause of action as per the facts of that case. Here, as the Cognizance was taken by the magistrate and it was observed that the accused was aggrieved by the order taking cognizance. Hence, Cause of Action shall be taken accordingly and hence jurisdiction of High Court would remain the place where the court has taken cognizance.

Apex Court in adjudication of another matter in 2010 observed that even a fraction of Cause of Action happening in the state will allow the corresponding High Court to exercise its jurisdiction. In this case parts were altered in Chennai and the process of search, seizure and detention was carried out at Hyderabad. The Court observed that as the cause of action also originates in Hyderabad, hence High Court was wrong in rejecting the petition for want of jurisdiction.⁹

Similar issue also originated before Madras High Court in 2017,¹⁰ wherein writ petitions were filed to call for records in regard to the FIR registered at Patiala House Courts, New Delhi. The petitioners relied on various Supreme Court judgments, arguing that part of the cause of action arose within the court's jurisdiction. However, the Supreme Court dismissed the writ petitions, holding that only those facts which are material, essential, and integral to the dispute can constitute a valid cause of action. While even a small part of the cause of action can confer jurisdiction, it must be substantial and not merely incidental. The Court further emphasized that, for a writ petition under Article 226 to be maintainable, the cause of action must be meaningfully connected to the dispute. Additionally, invoking the principle of forum convenience, the Court held that even where jurisdiction exists, it may decline to exercise its discretionary powers in the interest of justice.

The concept of extra-territorial writ jurisdiction under Article 226(2), introduced through the 15th Constitutional Amendment, operates effectively in civil disputes where the doctrine of “cause of action” is well established. However, its application in criminal matters has remained complex and evolving. Prior to the amendment, as seen in early constitutional bench judgments of 1953 and 1961, the Supreme Court consistently held that jurisdiction under Article 226 depended on the location of the authority passing the order, and the concept of “cause of action” was considered alien to such proceedings. This amendment introduced the concept of cause of action expanding the territorial reach of High Courts. Nonetheless, in criminal law, courts have struggled to define its contours, as the traditional notion of “place of occurrence” of an offence does not neatly align with the civil law understanding of cause of action. In subsequent judgments, courts have at times equated cause of action with the place of occurrence, while in others, it has been linked to factors such as registration of FIR or the place where cognizance is taken. However, the Supreme Court has cautioned against mechanically applying civil law principles to criminal proceedings, noting that such an approach may lead to confusion, multiplicity of litigation, and potential abuse of process.

Judicial developments reflect a lack of a uniform standard, with courts adopting a case-specific approach. While some decisions have accepted place of occurrence as a basis for jurisdiction, later judgments have criticized this equivalence without fully overruling earlier precedents. Ultimately, the prevailing position is that there is no straightjacket formula: the determination of jurisdiction under Article 226(2) in criminal matters depends on whether the facts relied upon constitute a material, essential, and integral part of the dispute. Even where territorial jurisdiction technically exists, courts may decline to exercise their discretionary writ powers on grounds such as forum convenience and the broader interests of justice.

End Notes & References:

1. ABC Laminart (P) Ltd. v. A.P. Agencies, AIR 1989 SC 1239

2. ABC Laminart (P) Ltd. v. A.P. Agencies, AIR 1989 SC 1239

3. Lt. Col. Khajoor Singh v. Union of India, 1961 AIR 532

4. CBI v. Narayan Diwakar, AIR 1999 SC 2362

5. Navinchandra N. Majithia v. State of Maharashtra, (2000) 7 SCC 640

6. Shri Rajendra Ramchandra Kavalekar v. State of Maharashtra, 2009 AIR (SC) 1792

7. Dashrath Rupsingh Rathod v. State of Maharashtra, AIR 2014 SC 3519

8. Premadasan v. State of Kerela, 12 June 2007

9. Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC 457

10. Karthi P Chidambaram v. Superintendent of Police, WP.SR.69241 of 2017

Author is an Advocate practicing at Supreme Court of India & Delhi High Court. Views are personal.