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2009 DIGILAW 206 (PAT)

Manoj Kumar Beura v. State of Bihar

2009-02-06

body2009
ORDER 1. Heard the learned counsel for the parties. 2. The petitioner has prayed for quashing the entire prosecution of Katihar Town P.S. Case No. 626 of 1996 being G.R. No. 2550 of 1996 arising out of Complaint Case No. 1468 of 1996 under Section 13 of the P.C. Act. The petitioner also seeks quashing of the orders dated 28.2.2002 and 23.7.2007 passed by the learned Chief Judicial Magistrate, Katihar, issuing warrant of arrest against the petitioner in aforesaid case. The issues involved in this case are as follows:- (a) Whether a Magistrate has jurisdiction to Entertain complaint case under Section 13 of The P.C. Act and can it endorse the same to Police under Section 156 (3) Cr.P.C. to register a case? (b) Whether a Magistrate could have issued a warrant on requisitions made 'I pursuant to the investigation in such matter? (c) Whether an appropriate course would have been for the Magistrate to return the complaint under Section 201 of Cr.P.C. for being presented before the competent Court? 3. The petitioner was posted as Senior Divisional Signal and Telecommunication Engineer, Katihar Division, N.F. Railway, Katihar. In 1997 he was transferred to New Jalpaiguri and at present is posted at Bhubaneshwar. 4. One Pradeep Kumar Sharma filed, a complaint case before the Chief Judicial Magistrate, Katihar on 17.12.1996 stating therein that he was a partner of firm namely, M/s Jupitor Electronics and also partner of M/s Pradeep Kumar Sharma. The aforesaid Firm pursuant to agreement with railways executed Signal and Telecommunication works. Though the bill was passed a sum of Rs.85,000/- was deducted as the complainant did not oblige the petitioner and others. The learned Chief Judicial Magistrate entertained the complaint which was registered as Complaint Case No. 1468/96 under Section 13 of the P.C. Act. The Magistrate thereafter endorsed the same to police for investigation under Section 156 (3) Cr.P.C. 5. The police consequently registered a complaint as Katihar Town P.S. Case No. 626/96 under Section 13 of the P.C. Act. The case was investigated by Dy. S.P., Katihar District Headquarters on requisition of I.O. The Chief Judicial Magistrate, Katihar issued warrant of arrest against the petitioner vide his order dated 28.2.2007 and 23.7.2007. Thereafter compromise petition was filed in the Court of Chief Judicial Magistrate, Katihar which was kept on record. The case was investigated by Dy. S.P., Katihar District Headquarters on requisition of I.O. The Chief Judicial Magistrate, Katihar issued warrant of arrest against the petitioner vide his order dated 28.2.2007 and 23.7.2007. Thereafter compromise petition was filed in the Court of Chief Judicial Magistrate, Katihar which was kept on record. A Money Suit was also filed by the petitioner being Money Suit No.57/94 for his monetary dues. The Chief Judicial Magistrate, Katihar subsequently on 27.10.2007, transferred the case to Special Judge, Katihar competent to try the case. 6. The petitioner submits that the Chief Judicial Magistrate, Katihar did not have jurisdiction to entertain a complaint under the P.C, Act, 1988 and to refer the same to police under 156 (3) Cr.P.C. for instituting a case. He did not have jurisdiction either to issue warrant of arrest on requisition of I.O. He further submits that his subsequent order referring the case to District Judge for being put up before a competent Court, was in teeth of Section 201 Cr.P.C. His further case is that a corruption case against a public servant or Government servant can be instituted only with the Vigilance Police of the Cabinet Vigilance Department in terms of Notification dated 6.6.1973 of the State Government contained in Annexure-3. 7. So far as merit of the case is concerned he submits that no case would be made out against him as he has passed the bill promptly and he was not responsible for delay or less payment. 8. The learned counsel, for the State submits that the allegation do make out a prima facie case against the petitioner. However he is not able to controvert the legal position, that a Chief Judicial Magistrate has no jurisdiction to entertain corruption case under P.C. Act. 9. The learned counsel for the Vigilance submits that the Vigilance has unnecessarily been made a party in this case. 10. The Department of Home (Police), Government of Bihar issued notification on 6.6.1973 stating that Headquarter of Cabinet (Vigilance) Department would be deemed to be Police Station in respect of case of corruption and bribery to be instituted by Cabinet Vigilance. The investigation of such case will be done by the Cabinate Vigilance Bureau under control and supervision of an officer of D.I.G. rank of Cabinet Vigilance Department. It will have jurisdiction all over Bihar. 11. The investigation of such case will be done by the Cabinate Vigilance Bureau under control and supervision of an officer of D.I.G. rank of Cabinet Vigilance Department. It will have jurisdiction all over Bihar. 11. The Prevention of Corruption Act, 1947 was amended in 1964 to make it more effective. Further more in 1988, the P.C. Act, 1988 was legislated with avowed purpose of affecting prevention of bribery and corruption and for tiding over short coming in 1947 Act. 12. Section 4 of the P.C. Act states that offence specified under Section 3 shall be tried by a Special Judge only as may be notified by the State Government as well as Central Government. Neither the P.C. Act nor Cr.P.C. authorizes a Magistrate to accept a complaint directly under Section 13 of the P.C. Act. As a Magistrate lacks jurisdiction to entertain a complaint, he cannot direct the police to register a case under P.C. Act under Section 156 (3) of Cr.P.C. For the same reason the Magistrate could not have issued warrant of arrest pursuant to requisition filed by the police, after registering a case under Section 156 (3) Cr.P.C. 13. The Hon'ble Apex Court in case of P. Serajuddin reported in A.I.R. 1971 S.C. 520 has observed that before an F.I.R. is lodged against a public servant publicly charged with dishonesty or corruption, the same should be enquired into at a preliminary level before instituting an F.I.R. 14. Further more an offence under P.C. Act is to be tried by Special Judge to be appointed particularly for trying such offence. Under Section 5 (1) of P.C. Act, the Special Judge only can take cognizance of offence. 15. In view of enactment of P.C. Act, 1988 the jurisdiction to entertain cases of corruption under the P.C. Act has been divested from Magistrate and has been invested with Special Judge appointed to try such case as provided in Section 3 of the P .C. Act. 16. In view of such settled norms and provisions, the learned Chief Judicial Magistrate, Katihar could not have entertained the complaint under P.C. Act. The subsequent: action of the Magistrate forwarding the complaint to general police under Section 156(3) and its subsequent registration as Katihar Town P.S. Case No. 626 of 1996 are all without jurisdiction. 16. In view of such settled norms and provisions, the learned Chief Judicial Magistrate, Katihar could not have entertained the complaint under P.C. Act. The subsequent: action of the Magistrate forwarding the complaint to general police under Section 156(3) and its subsequent registration as Katihar Town P.S. Case No. 626 of 1996 are all without jurisdiction. Similarly the subsequent orders dated 28.2.2002 and 23.7.2007 passed by the Chief Judicial Magistrate, Katihar, directing issuance of warrant against the petitioner in the aforesaid case is too without jurisdiction. 17. This takes up to the last submission of the petitioner whether the order dated 27.10.2007 forwarding the complaint to be put before the Special Judge Vigilance after due permission of District and Sessions Judge, Katihar is in teeth of Section 201 of Cr.P.C. or not. 18. According to the petitioner the complaint file ought to have been returned to the complaint to be presented before Special Judge, Vigilance, instead of Court forwarding the same to District and Sessions Judge for being put up before Special Judge. 19. Before I examine issue it would be necessary to quote Section 201 of Cr.P.C. which is as follows:- 201. "Procedure by Magistrate not competent to take cognizance of he case.-If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, as per Section 201 (A), return the complaint for presentation to the proper Court with an endorsement to that effect." 20. It would appear that Section 201 (1) of Cr.P.C mandates that if a complaint has been filed before a Magistrate not competent to take cognizance of the case, the same would be returned for presentation to appropriate Court with an endorsement to that effect. The provision does not specifically state that the same has to be returned to complainant. As such Court not competent to entertain the complaint may return the complaint to be filed before appropriate Court or may return the same to the appropriate Court itself. In the instant case the C.J.M., has sent the file to District and Sessions Judge, Katihar for putting it up before a competent Court. 21. As such Court not competent to entertain the complaint may return the complaint to be filed before appropriate Court or may return the same to the appropriate Court itself. In the instant case the C.J.M., has sent the file to District and Sessions Judge, Katihar for putting it up before a competent Court. 21. Thus, this Court does not find any fault in order dated 27.7.2007 of Chief Judicial Magistrate, Katihar in returning the complaint to be put before Special Judge, Vigilance which was subsequently registered as Kotwali P.S. Case No. 37 of 2007, now pending before Special Judge, Vigilance, Patna. 22. Thus the act of entertaining complaint case under Section 13 of P.C. Act by Magistrate and forwarding the same to police under Section 156 (3) Cr.P.C. giving rise to Kotwali P.S. Case No. 624/96 as well as order issuing warrant of arrest dated 28.2.2007 and 23.7.2007 on requisition of Police in aforesaid case, being without jurisdiction are hereby quashed. 23. This writ applications allowed to the extent mentioned above with observations aforesaid.