S MANIAN Vs. P M NACHIMUTHU

JUDGEMENT

(1.) THE accused in Calendar Case No. 355 of 1997 on the file of the Judicial Magistrate, Palladam is the revision petitioner. THE respondent in this revision is the complainant therein. That was a private complaint filed under Section 200 of the Code of Criminal Procedure alleging an offence under Section 138 of the Negotiable Instruments Act. Pending trial the accused filed Crl.M.P. No. 3196 of 1997 under Section 245 of the Code of Criminal Procedure to discharge him from that proceedings. That application was dismissed on merits. Hence the present revision. Heard Mr. Su. Srinivasan learned counsel appearing for the petitioner and Mr.S.Doraiswami learned counsel appearing for the respondent. I also directed Mr.R.Karthikeyan learned Government Advocate appearing on the criminal side to assist the Court and he readily assisted.

(2.) THE sum and substance of the argument of the learned counsel for the petitioner is that the complaint referred to earlier is actually presented by the Power of Attorney of the complainant and since the Code of Criminal Procedure does not recognise a Power Agent of the complainant to present the complaint, the Magistrate had erred in taking cognizance of the offence on such a complaint. THE learned counsel would state that under the Code of Criminal Procedure a private complaint must be lodged only by a party namely, the complainant himself/herself. Inasmuch as Section 200 of the Code of Criminal Procedure commands the Magistrate taking cognizance of such an offence, to examine the complainant on oath, it has to be necessarily held that except the complainant himself/herself, nobody-else can file a complaint. THE learned counsel would also add that the Power Agent in this case cannot be equated to a "pleader" and in any event if he is equated to a pleader, then he cannot give any evidence in court. Inasmuch as the sworn statement of the Power Agent has been recorded in this case and there being no sworn statement of the complainant himself, the Court erred in taking cognizance of the case on such materials. THE learned counsel would conclude his argument by stating that such an illegal act of taking cognizance of the case is an irregularity which would vitiate the entire proceedings and it cannot be called as a curable irregularity.

(3.) AS rightly contended by the learned counsel for the petitioner on the day when the complaint was presented by the Power Agent, the power document executed by the complainant in favour of the Power Agent was not presented in Court. The complaint does not even whisper about there being a power document. No doubt the power document is dated 17.7.1997 and the complaint is also dated 17.7.1997. In the face of the above factual situation namely, the absence of the power document in court on the day when the complaint came to be presented by the power agent and the absence of prior order from the court permitting the power agent to present the complaint, the question that comes up for consideration now is, whether the Magistrate had committed any illegality in taking cognizance of the offence on the basis of such a complaint. The answer would be against the revision petitioner and the answer is found in Section 460 of the Code of Criminal Procedure. Section 460 of the Code of Criminal Procedure speaks about irregularities, which do not vitiate the proceedings. Section 461 speaks about irregularities, which do vitiate the proceedings. Under section 460 (e) of the Code of Criminal Procedure, if a Magistrate, who is not empowered by law to take cognizance of an offence under clause (a) or clause (b) of sub section (1) of section 190, takes cognizance of an offence, then his act of taking such cognizance would not vitiate the proceedings. However the learned counsel'sargument is that Section 460 of the Code o f Criminal Procedure would not apply to the case on hand since the accused has not disputed the power of the Magistrate to take cognizance of an offence on a private complaint. He would state that inasmuch as the power of the Court is not disputed to take cognizance and there is only an illegality in presenting the complaint, such an illegality cannot be brought under Section 460 (e) of the Code of Criminal Procedure. I am afraid I cannot agree with the learned counsel on this proposition of law as contended by him. A Magistrate is authorised to take cognizance of an offence on a private complaint under Section 190 (l) (a) of the Code of Criminal Procedure. If he has to exercise the power, then the complaint should be presented before him in a legal manner. In the case on hand the complaint was not presented in a manner prescribed by law namely, after obtaining prior permission from the court. If that is so, the court is not empowered by law to take cognizance of the offence on that complaint, but yet it has been done. Under these circumstances, I am of the firm opinion that Section 460 (e) of the Code of Criminal Procedure definitely comes in handy to save the complaint on the basis of which initially the Magistrate took cognizance of the offence. Though the Magistrate in this case had taken cognizance of the offence on the complaint in breach of law namely, section 190 (1) (a) read with section 2 (q) of the Code of Criminal Procedure and Rule 111 of the Criminal Rules of Practice, yet in view of section 460 (e) of the Code of Criminal Procedure, this illegality would not have the effect of vitiating the proceedings itself. The court, by dismissing the discharge petition, appears to have ratified the act of the power agent of the complainant presenting the complaint.