NEM CHAND JAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these petitions have been preferred for quashing the entire criminal proceedings in Sasaram Town P.S. Case No. 523 of 1993 including the order dated 1.8.1994 by which cognizance have been taken against the accused -petitioners under Sections 181/191/467/468/471/120B of the Indian Penal Code.

(2.) THE facts involved in the case are that a criminal case was instituted against the petitioners under Section 7 of the Essential Commodities Act, but on technical grounds the cognizance taken in the said case under the E.C. Act had been quashed, by this Court as reported in 1996(1) PLJR 713. As an ancillary proceeding regarding the confiscation of the articles seized in the proceedings under Section 7 of the E.C. Act a further proceeding was ensued before the Collector under Section 6A of the E.C. Act and the same confiscation proceeding was registered before the Collector, Sasaram as Case No.3 of 1993. That proceeding was disposed of by the Collector on 16.11.1993. Then the complainant in the E.C. Act proceedings brought it to the notice of the Collector that in the proceeding under Section 6A of the E.C. Act the petitioners could get favourable order on filing of forged and fabricated documents and on swearing of a false affidavit. On the basis of such allegations being made the Collector without holding any enquiry for satisfying himself about the allegations brought as contemplated under Section 340 of the Cr.P.C. asked its Subordinate the Deputy Collector of Sasaram to proceed for a criminal case against the petitioners. Accordingly vide Annexure -3 an FIR was lodged by the Deputy Collector with a note at the very first instance that as per direction of the Collector that he was lodging the information against the petitioners. After investigation charge - sheet was submitted under the said Sections of the Indian Penal Code as stated above and on the basis of the charge - sheet without going into the merit and legality about the proceeding itself the learned Judicial Magistrate of the 1st Class of Sasaram took cognizance against the petitioners. It should be mentioned here that there was allegation against the petitioners under Stamp Act also. But no charge -sheet was submitted under the Penal Provisions of the Stamp Act and no cognizance has been taken. The cognizance taken and the jurisdiction about the whole criminal case has been challenged in these petitions under Section 482 of the Cr.P.C. The first objection raised is with regard to violation of Section 195 of the Cr.P.C. to the extent that Section 195 Cr.P.C. does not recognise any information lodged to the Police or investigation through the police etc. The penal provisions included within the provisions of Section 195 Cr.P.C., recognises only complaint to be filed by the Court where allegations of forgery, falsity had been alleged. So it has been submitted that the whole criminal case on the basis of first information report is unwarranted and, as such, without jurisdiction. Section 195 Cr. P.C. envisages as per Sub -Rule (1) A(1) that any offence punishable under Sections 172 to 188 cannot be taken cognizance of by any Court unless the complaint is being made by the Court where such offence had been committed during the proceeding before the Court or by a higher Court to which that Court is subordinate. Similarly under Sub -rule (1)(b) (2) offences punishable under Sections 463/471/475/476 cannot be taken cognizance of by any Court unless the complaint is registered by a Court where the offence was being committed during the proceeding before the Court or by a higher Court to which that Court is subordinate. In the present case, the offences had alleged to be committed in the proceeding under Section 6A of the E.C. Act before the Collector and, as such, it was the Collector who should have lodged the complaint before the Criminal Court but instead in the present case a first information report has been made before the Police that too, by a Subordinate Officer, namely, the Deputy Collector. Thus the mandate of Section 195 Cr.P.C. had been totally violated in the present case inasmuc has the case has not been registered on a complaint and that the first information, has also been lodged not by the Collector but by a Subordinate Officer, namely, the Deputy Collector. In that way, the whole proceeding was without jurisdiction and, as such, cognizance taken are also without jurisdiction. In this context it may also be observed that in most of the cases of such nature it is found that whenever an adverse party makes an allegation of such nature of offences which comes within the purview of section 195 Cr. P.C. the Court on the basis of such allegations proceeds to file complaint but that is not proper. The provisions of Section 340 of the Cr.P.C. must be adverted to when such allegations are brought to the notice of the Court in a proceeding for the purpose that the Court must be prima facie satisfied that such offences were attempted to be made before the Court while proceeding was going on before him.

(3.) THE main dispute is whether the private respondents were appointed in Bihar Education Service Class -ll, but it is not in dispute that the private respondents were appointed earlier time than the petitioners. But the petitioners are asserting that from Annexure -3 it will appear that the private respondents were not appointed in Bihar Education Service Grade -ll,