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2003 DIGILAW 489 (PNJ)

Hanif Khan v. Pappi

2003-04-02

S.S.SARON

body2003
Judgment 1. The present petition has been filed under Sec.482 Code of criminal Procedure (for short the Code) for quashing of complaint No.84 dated 24-5-1999 filed under Sec.138 of the Negotiable instruments Act as also the orders dated 3-3-2001 passed by the Judicial magistrate First Class, Gurgaon, and 5-3-2001 passed by the Chief judicial Magistrate, Gurgaon. 2. The short contention urged by Mr. Sanjay Vij, the learned counsel for the petitioner is that the learned Judicial Magistrate First Class, gurgaon, after finding that he had no jurisdiction to entertain the complaint, was liable to return the same to the complainant in terms of section 201 of the Code and not send the file to the court of learned chief Judicial Magistrate, Gurgaon, for transfer of the case to the Court of competent jurisdiction at Nuh. 3. Learned counsel for the complainant, however, contends that the order having been passed with the consent of the petitioner, there is no fault with the order of the Judicial Magistrate First Class, Gurgaon, in sending the file to the learned Chief Judicial Magistrate, Gurgaon, for transfer of the case to of the Court of Sub Divisional Judicial Magistrate, Nuh. 4. I have considered the respective contentions of the learned counsel for the parties and with their assistance, gone through the records of the case. 5. In order to appreciate the contentions raised by the learned counsel for the parties, the provisions of Sec.201 of the Code may be noticed, which read as follows:- "procedure by Magistrate not competent to take cognizance of the case:- If the complaint is made to a Magistrate, who is not competent to take cognizance of the offence, he shall, (a) if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. 6 A reading of the above provisions of Sec.201 of the Code shows that if the complaint is made in writing to a Magistrate, who is not competent to take cognizance of the offence, he shall return it to the complainant for presentation to the proper Court with an endorsement to that effect. 7. 6 A reading of the above provisions of Sec.201 of the Code shows that if the complaint is made in writing to a Magistrate, who is not competent to take cognizance of the offence, he shall return it to the complainant for presentation to the proper Court with an endorsement to that effect. 7. In this view of the matter, the learned Judicial Magistrate First Class, gurgaon, in his order dated 3-3-2001 after noticing during the course of arguments, that the Court at Nuh had the jurisdiction to entertain the present complaint erred in ordering that the file be sent to the Court of learned Chief Judicial Magistrate Gurgaon, for transfer to the Court of competent jurisdiction at Nuh. Resultantly, the learned Chief Judicial magistrate Gurgaon, also erred in ordering the withdrawal of the case from the Court of Judicial Magistrate First Class, Gurgaon, and entrusting it to the Court of learned Sub Divisional Judicial Magistrate, Nuh for disposal according to law. 8. It is not in dispute that the jurisdiction of the Courts to take cognizance of the case has been provided for in Chapter XIII of the Code, which relates to the jurisdiction of the criminal Courts in inquiries and trials. Sec.177 of the Code provides for the ordinary place of enquiry and trial. It is provided therein that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Sec.178 of the code deals with the place of inquiry or trial, when it is uncertain in which of several local areas an offence has been committed. In the case in hand, the judicial Magistrate First Class, Gurgaon, reached a conclusion that the Court at Nuh was the competent Court to take cognizance of the case - Therefore, it was incumbent upon him to act in accordance with Sec.201 of the code and return the complaint to the complainant for presentation to the proper Court with an endorsement to that effect in accordance with Section 201 of the Code. The contention of the learned counsel for the complainant that the petitioner himself had consented to the transfer of the case, would not stand in the way as there cannot be any acquiescence or estoppel against the statutory provisions of the Code. 9. In view of the above, the petition is partly allowed. The contention of the learned counsel for the complainant that the petitioner himself had consented to the transfer of the case, would not stand in the way as there cannot be any acquiescence or estoppel against the statutory provisions of the Code. 9. In view of the above, the petition is partly allowed. The orders dated 3-3-2001 and 5-3-2001 of the learned Judicial Magistrate 1st Class, gurgaon, and the learned Chief Judicial Magistrate, Gurgaon, respectively are quashed and the complaint shall be entrusted to the Court of Judicial magistrate 1st Class, Gurgaon, where it was initially pending at the time of passing the order dated 3-3-2001 and that Court shall return the complaint to the complainant for presentation to the proper Court in accordance with Sec.201 of the Code. 10. This petition is disposed of accordingly.