HAREKRISHNA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) If I hold, as I must, that the complainant cannot be the Judge of his own case, the order of conviction recorded against the petitioner under S. 193 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs. 100/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month, affirmed by the appellate Court, must be set at naught. I do not feel myself called upon to go into the merits of the case as the entire proceedings against the petitioner had been vitiated by an illegal order taking cognisance passed by the same Magistrate who had made the complaint. The ground urged on behalf of the petitioner in this regard is unassailable and has fairly been acceded to by the learned Standing Counsel.

(2.) For making two irreconcilable statements in two judicial proceedings, admitting one thing in the former case and denying it in the other, before the Judicial Magistrate, First Class, Baramba, a complaint was made as required under S. 195 of the Code of Criminal Procedure ('the Code', for short) by Mr. M.P. Mishra, then functioning as the Judicial Magistrate, First Class, Baramba, "In the Court of the Judl. Magistrate Ist. Class Baramba" of which he was himself the Presiding Officer. On the basis of the complaint made by him, the same Judicial Magistrate took cognisance of the offence, evidently under S. 190(1)(c) of the Code. The complainant, whoever he may be, cannot be a Judge of his own case in such a matter. The learned Judicial Magistrate went legally wrong in taking cognisance on the basis of his own complaint. It was open to him to make the complaint before the Chief Judicial Magistrate, Cuttack, or before the Subdivisional Judicial Magistrate, Athgarh. Baramba comes within the area of the subdivision of Athgarh in the district of Cuttack. The learned Judicial Magistrate did not take recourse to this and took cognisance himself, as indicated above, which could not legally be done. In this connection, reference may be made to the decisions reported in 1982 Cut LR (Cri) 146 Gopinath Pradhan v. State of Orissa, and AIR 1952 Ass 68, Ramswarup Agarwalla v. State.

(3.) As provided in S. 460 of the Code, if an irregularity is committed by a Magistrate not empowered by law by taking cognisance of an offence under Cl. (a) or Cl. (b) of sub-sec. (1) of S. 190 of the Code, this irregularity does not vitiate the proceedings. It has been provided in S. 461 of the Code that if a Magistrate, not being empowered by law in that behalf, takes cognisance of an offence under Cl. (c) of sub-sec. (1) of S. 190 of the Code, this irregularity vitiates the proceedings. For the aforesaid reasons, the contention raised on behalf of the petitioner that the entire criminal proceedings against the petitioner were invalid must be upheld.