P K SARANGI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner calls in question legality of order dated 11 -3 -1992 passed by Judicial Magistrate First Class Bhawani -patna taking, cognizance of offences punishable under Sections 176 and 202 of the Indian Penal Code, 1860 (in short IPC) and directing issue of notice to him to face trial. Action was taken on the purported exercise of power conferred under Section 319 of the Code of criminal Procedure, 1973 (in short, the Code on the basis of an application filed by one Uma Sankar Mund (opp. party No. 2) (hereinafter referred to as the accused Petitioner's application for revision of the order before learned Sessions Judge Kalahandi Bhawanipatna did not bring any relief and thereafter this application has been filed.

(2.) BACKGROUND facts sans unnecessary details are as follows : Petitioner while working as Project Manager in Kalahandi Utilisation Division of Similipahar Forest Development Corporation Ltd. (in short, 'Corporation' ) detected certain forgeries and misappropriation. On the allegation that there was over -payment to the extent of Rs. 57,402.43 to one Karam Chand Sarma of Lanjigad, petitioner asked said Sri Sarma to refund the amount. In response to the letter dated 26 -12 -1987 Sri Sarma replied that he had neither submitted any revised bill nor received any amount. Being of the view that bills were prepared by accused Uma Sankar Mund, Junior Clerk of the office and signatures were forged, information was lodged with Officer -in -charge, Town P. S. Bhawanipatna. Investigation was under taken charge -sheet was submitted and accused faced trial. During trial it appeared that amount in question had been refunded subsequent to query by petitioner. Accused made a grievance that factum of payment was not intimated to the police or to the Corporation authorities. A departmental proceeding was pending against accused In the petition styled as under Section 319 of the Code, accused alleged that material facts were intentionally omitted to be mentioned. Omission to implead the then Accountant as an accused was also an infraction. It was pleaded that petitioner had committed offence punishable under Sections 176 and 202 IPC for such omission and was to be proceeded against in terms of Section 319 of the Code. Such prayer found acceptance by (earned Magistrate, who took cognizance and directed issuance of notice to petitioner as indicated above According to petitioner, there was no omission and relevant information was given to the appropriate authorities. The plea having not found acceptance by Courts below, petition under consideration has been filed.

(3.) ADMITTEDLY , in the case in hand no complaint has been made by the concerned public servant or some other public servant to whom he is administratively subordinate as required under Section 195 of the Code. It is one of the sections which prohibits Court from taking cognizance of certain offences unless, and until a complaint has been made by some particular authority or person. Other sections dealing with similar matter are Sections 196 to 199 of the Code. However they do not lay down any rule of procedure. They only create bar and say that unless some requirement has been complied with no Court, shall take cognizance of offences described in those sections. These sections regulate the competence of the Court and bar its jurisdiction . in certain cases excepting in compliance therewith. But Section 190 does not. The scope of this section as regards making of complaints is not restricted to the Courts detailed in Section 340. The section creates an absolute bar against the Court taking seisin of the case except in the manner provided by this section. (See Doulat Ram v. State of Punjab AIR 1962 SC 1206). As Section 195 of the Code bars the jurisdiction of the Magistrate to take cognizance, if he does take cognizance against the provisions of the said section, the cognizance would be illegal and without jurisdiction and if taking of cognizance is illegal, even the subsequent commitment order in the case would be liable to be quashed. This section has been enacted as a safeguard against irresponsible and reckless prosecutions by private individuals in respect of offences which relate to the administration of justice and contempt of lawful authority. The object of the section is to minimise the possibility of needless harassment of litigants by rash. Useless or vexatious prosecutions at the instance of their opponents As Sections. 195 and 343 now stand, it is clear that they must be read together. Sub - Section (I) lays down a bar to the cognizance of certain offences. Chapter XXVI lays down the procedure for cases mentioned in this section but it has no application to the proceedings taken under Clause (a). That chapter only relates to the prosecutions started under Clause (b) of Sub Section (1) of Section 195. Section 343 lays down the procedure as to how the bar imposed by Sub - Section (1) of Clause (b) of Section 195 is to be removed where therefore there is no bar created by that clause. Section 343 has no operation nor does the section as it now stands, apply to offences referred to in Section 195 Sub. Section (1), Clause (a) with regard to which the complaint is to be by the public servant concerned and not by a Court sub - Section (1). Clause (b) (ii) bars the cognizance of offence of forgery and certain connected offences, when the offence is committed by a Party to the proceeding or any person who is not a party to any proceeding In Court Sections 193, 195 to 199 regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. Compliance with the provisions of Section 195 is a condition precedent to the Court assuming jurisdiction and failure to comply with those provisions would vitiate the entire trial as without jurisdiction. This section imposes a definite bar which cannot be ignored or waived any more than the prohibitions contained in provisions like Sections 132 and 197 and just as the sections provided for in those sections cannot be given by any authority save the ones specified so here only the authorities mentioned in Section 195(1) (a) and (b) can remove the bar and make the complaint. The Legislature has provided a condition precedent to the exercise of jurisdiction by a Court and the condition precedent must be strictly complied with.