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1990 Supreme(Pat) 218
PATNA HIGH COURT
Bhuvaneshwar Prasad, J.
Mahesh Chander Singh
Versus
Raghunandan Prasad
Criminal Miscellaneous No. 3630 of 1988 ;
Decided On : JUNE 27, 1990
Subject
Criminal Law - Quashing of Criminal Proceedings
Act Referred
INDIAN PENAL CODE : S.406, S.504
Headnote
(Paras 5 & 6)
Code of Criminal Procedure, 1973, Sec. 192 & 322-Complaint case for offences u/s 406 & 504 I.P.C. before the Chief Judicial Magistrate who also examined the complainant on Solemn affirmation-case transferred for holding inquiry or trial u/s 192 to a Second Class Judicial Magistrate who examined two witnesses and issued process-u/s 192(1) it is only the Chief Judicial Magistrate who could make over the case for enquiry or trial to any competent Magistrate Subordinate to him after taking cognizance of the offence-competent Magistrate would mean a Magistrate who is competent to hold enquiry or trial-Offence triable by a Magistrate of 1st Class can not be made over to a Magistrate of IInd Class who will not get Jurisdiction to enquire into or to try an offence which is triable exclusively by a Magistrate of 1st Class-order is not valid-Sec. 322 envisages a situation when in course of an enquiry or trial if it appears to warrant presumption that the Magistrate has got no jurisdiction to try, then he is required to stay the proceeding-Section is not applicable-AIR 1933 Lahore 1009, AIR 1940 oudh 244, AIR 1941 sind 36, 1944 CWN 1114, 1958 CWN 383 ref. (Paras 9, 10, 12, & 16)
Code of Criminal Procedure, 1973, Sec. 397(2) & 482 - Order issuing processes - Whether interlocutory in nature and so no revision will lie-bar of the Section operates only in exercise of revisional powers and not affect the inherent powers-Order substantially affecting the right of the parties can not be said to be interlocutory and bar of section would not apply when the orders are without jurisdiction-AIR 1983 SC 67 rel. on, AIR 1978 SC 47, AIR 1980 SC 258 & AIR 1977 SC 2185 ref. (Paras 18 & 19)
1. This application under Sec. 482 of the Code of Criminal Procedure, 1973 (In short the Code) has been filed for quashing the prosecution of the petitioner for the offences under Secs. 406 and 504 of the IPC in Complaint Case No. 42-C of 1988 including the order dated 30-3-1988 passed by Shri A K. Verma Judicial Magistrate IInd Class, Nalanda at Biharsharif ordering for issuance of processes against the petitioner on the ground that a prima facie case under the aforesaid sections has been made out against him.
2. It appears that opposite party Raghunandan Prasad had filed a complaint petition (Complaint Case No.42-C of 1988) against the present petitioner before the Chief Judicial Magistrate, Nalanda at Biharsharif. In this complaint petition he had made allegations against the petitioner with respect to the offences under Secs. 406 and 504 of the Indian Penal Code. According to the opposite party he had handed over a sum of Rs.300.00 to the petitioner on 4-2-1988 towards the land revenue but the petitioner did not grant him any rent receipt. On the other hand, the petitioner asked him to come on the following day for obtaining the receipt. On this the opposite party had asked him to return back the money. The petitioner refused to do so, was infuriated, abused him and forcibly turned him out from the Chosrawan Kutchery. Thereby the opposite party alleged that the petitioner committed criminal breach of trust with respect to Rs.300/ -handed over to him and also the offence under Sec. 504 of the Indian Penal Code by intentionally insulting him with intent to provoke breach of peace by turning him out from the Kutchery. The learned Chief Judicial Magistrate examined the opposite party on solemn affirmation and by his order dated 5-2-1988 made over the case for inquiry or trial under Sec. 192 of the Code to the Court of Shri A. K. Verma, Judicial Magistrate, IInd Class. This order is particular as also the entire criminal prosecution against the petitioner are under challenge.
3. Before Shri A. K. Verma, Judicial Magistrate, IInd Class two witnesses were examined and finding a prima facie case made out against the petitioner he ordered for the issuance of processes against him by his order dated 30-3-1988. This order of the learned Magistrate has also been challenged as incompetent.
4. It has further been pointed out on behalf of the petitioner that no case under Secs. 406 and 504 of the Indian Penal Code has been made out against him. The opposite party was annoyed against him over the construction of a road on plot No. 339 in the village The report submitted by the petitioner had infuriated and annoyed the opposite party for which he had filed a petition before the Collector, Nalanda. The records of the Anchal will show that the rent only a sum of Rupees 194.38 paise was due from the opposite party up to 31-3-1988. As such there was no occasion for the opposite party to hand over a sum of Rs. 300.00 to the petitioner towards the payment of this rent. The allegations made in the complaint petition do not make out a case of criminal breach of trust. The allegations that when the opposite party had insisted for the issuance of a receipt the petitioner got him forcibly removed from the office and also abused him appear to be highly improbable. The petitioner is a karamchari and therefore a public servant. The allegation against him is that while discharging his official duties as a karamchari he had received a sum of Rs. 300.00 from the opposite party. As such while receiving this amount he was acting or purporting to act as a public servant in discharge of his official duties and therefore he cannot be prosecuted without proper sanction of the Government as required under Sec. 197 of the Code. The offence under Sec. 406 of the Indian Penal Code is triable by a Magistrate of Ist Class and therefore the case could not have been handed over to Shri A. K. Verma, Judicial Magistrate IInd Class under Sec. 192 of the Code. Conse
