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2009 DIGILAW 41 (CHH)

Narsinh Verma v. State of Chhattisgarh

2009-02-06

T.P.SHARMA

body2009
ORDER 1. This revision is directed against the order dated 29-11- 2008 passed by the Sessions Judge, Raipur in Criminal Revision No.160/2008, reversing the order dated 14-2-2008 passed by the Additional Chief Judicial Magistrate, Raipur, in Criminal Case No.149/2008, whereby learned Additional Chief Judicial Magistrate has taken cognizance of the offence punishable under Section 420 of the I.P.C. against non- applicant No.2, proceeded against non-applicant No.2 and issued the process. The order of the Additional Chief Judicial Magistrate has been set aside by the learned Sessions Judge vide the order impugned on the ground that the Additional Chief Judicial Magistrate was not competent to take cognizance of the offence which has not been committed within its territorial jurisdiction and quashed the order dated 14-2-2008. 2. The order of the Sessions Judge is challenged on the ground that the Additional Chief Judicial Magistrate was competent to take cognizance of the offence under Chapter XIV of the Code of Criminal Procedure, 1973 (for short `the Code'), trial has not been commenced before the Additional Chief Judicial Magistrate, therefore, there was no bar under Section 177 of the Code and by reversing the order of the Additional Chief Judicial Magistrate, the Court below has committed illegality. 3. I have heard learned counsel for the parties and perused the copy of the order impugned as also the copy of the order passed by the Additional Chief Judicial Magistrate, other copies of report, complaint, and the statements of the witnesses recorded under Section 200 to 202 of the Code. 4. Learned counsel for the applicant submits that the applicant had filed complaint against non-applicant No.2 for the offence punishable under Sections 420, 467, 471, 294 & 506B of the I.P.C., but the learned Additional Chief Judicial Magistrate has taken cognizance only of the offence punishable under Section 420 of the I.P.C. Although, according to the complaint and the statements of the witnesses recorded under Section 200 to 202 of the Code, offence punishable under Section 420 of the I.P.C. has been committed within the territorial jurisdiction of the Court situated at Durg, but non-applicant No.2 has also committed the offence punishable under Sections 294 & 506B of the I.P.C. within the jurisdiction of the Court situated at Raipur, therefore, the offence is triable also by the Court situated at Raipur having jurisdiction to try the said offence. Learned counsel further submits that the bar created under Section 177 of the Code is relating to inquiry & trial and not for taking cognizance. Any Judicial Magistrate, First Class or Second Class, especially empowered is competent to take cognizance of the offence in accordance with Section 190 of the Code. Learned counsel also submits that even if any Magistrate not being empowered by law in this behalf, takes cognizance of an offence under Clause (a) of sub-section (1) of Section 190 of the Code, it does not vitiate the proceeding and is only irregular in accordance with Section 460 (e) of the Code. He placed reliance in the matter of Trisuns Chemical Industry v. Rajesh Agarwal and others1 in which the Apex Court has held that the Court of JMFC is competent to take cognizance of the offence in accordance with Section 190 of the Code and there is no bar for taking cognizance of the offence which has not been committed within the territorial jurisdiction of the said Court. 5. Learned counsel for the applicant further placed reliance in the matter of K. Ramakrishna Reddy and others v. K. Padmavathi and another2 in which the Andhra Pradesh High Court has held that the JMFC is competent to take cognizance of offence irrespective of the fact that the offence is committed within its jurisdiction or not, but after taking cognizance of the offences, Court can decide the question of territorial jurisdiction and return the complaint to the complainant for presenting it before proper Court having territorial jurisdiction. 6. On the other hand, learned counsel appearing on behalf of the State/non-applicant No.1 supports the order impugned and submits that the Additional Chief Judicial Magistrate, Raipur has not only taken cognizance of the offence, but has also proceeded for trial of the case by issuing process against the accused for which the Court was not competent, therefore, the order impugned quashing the order passed by the Additional Chief Judicial Magistrate is just and legal. 7. On perusal of the order impugned, copies of the documents and copies of the statements, it appears that the alleged offence punishable under Section 420 of the I.P.C. has been committed within the territorial jurisdiction of the Court of Judicial Magistrate, First Class, situated at Durg and not within the territorial jurisdiction of the Court situated at Raipur. 7. On perusal of the order impugned, copies of the documents and copies of the statements, it appears that the alleged offence punishable under Section 420 of the I.P.C. has been committed within the territorial jurisdiction of the Court of Judicial Magistrate, First Class, situated at Durg and not within the territorial jurisdiction of the Court situated at Raipur. In terms of Section 460 (e) read with Section 190 & Chapter XIV of the Code, the Court of Additional Chief Judicial Magistrate, Raipur was competent to take cognizance of the offence irrespective of the fact that whether it was committed within its jurisdiction or not and cognizance taken by the Magistrate may be irregular but it does not vitiate the proceeding. But, if any Magistrate, not being empowered by law in this behalf, tries an offender, same is irregular which vitiates the proceeding in accordance with clause (l) of Section 461 of the Code and such proceeding shall be void. Therefore, the Additional Chief Judicial Magistrate was empowered to take cognizance of the offence, but was not empowered to try or inquire the case. 8. In the case of Trisuns (supra) the Apex Court has held that the Magistrate is competent to take cognizance. Para 11 of the judgment reads as follows: - "The only restriction contained in S. 190 is that the power to take cognizance is "subject to the provisions of this Chapter." There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provisions in the old Code of Criminal Procedure (1898) the commencing words were like these: "Except as hereinafter provided." Those words are now replaced by "Subject to the provisions of this chapter." Therefore, when there is nothing in chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. But such provisions are protected by non obstante clauses. Any way that is a different matter." 9. The order dated 14-2-2008 passed by the Additional Chief Judicial Magistrate, Raipur, in Criminal Case No.149/2008 reveals that after taking cognizance of the offence learned Additional Chief Judicial Magistrate has proceeded against the accused, issued process and trial has been commenced before the Court of the Additional Chief Judicial Magistrate. 10. While dealing with the question of commencement of trial, the Apex Court in the matter of Union of India and others v. Major General Madan Lal Yadav (Retd.)3 held that the trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance. Para 27 of the judgment reads thus "Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210. Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant-cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the Court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial." 11. In the present case, the Additional Chief Judicial Magistrate, Raipur was competent to take cognizance of offence in accordance with Section 190 & Chapter XIV of the Code, but in accordance with Section 177 of the Code, the Additional Chief Judicial Magistrate, Raipur was not competent to inquire or trial the offence which has not been committed within its territorial jurisdiction and committed within the territorial jurisdiction of the Court situated at Durg. As has been held by the Andhra Pradesh High Court in the matter of K. Ramakrishna Reddy (supra) which has been relied upon by the applicant, the Additional Chief Judicial Magistrate, Raipur, was required to return the complaint to the complainant for presenting the same before the Court having territorial jurisdiction. 12. Judicial Magistrate, First Class/Additional Chief Judicial Magistrate is empowered to take cognizance of the offence in accordance with Section 190 & Chapter XIV of the Code irrespective of the fact that the Court is having territorial jurisdiction or not, but for inquiry & trial of the offence the Court having jurisdiction to try the offence is only empowered to try the offence in accordance with Section 177 or Chapter XIII of the Code. 13. While setting aside the order of the Additional Chief Judicial Magistrate, learned Sessions Judge was required to direct the Additional Chief Judicial Magistrate to return the complaint to the complainant for presenting the same before proper Court having territorial jurisdiction, but learned Sessions Judge has failed to do so. In the light of the aforesaid legal proposition, the order impugned is modified to that extent and the Additional Chief Judicial Magistrate, Raipur is directed to return the complaint to the complainant/applicant for presenting it before the Court having territorial jurisdiction. 14. The revision stands disposed of, accordingly.