1989 Supreme(Ori) 13

High Court Of Orissa
K. P. MOHAPATRA
DIST.MANAGER, FOOD CORPN.OF INDIA - Appellant
Versus
JAYASHANKAR MUND - Respondent
CRIMINAL REVISION 138  Of  1985
Decided On : 01/25/1989

An order of taking cognizance is in the nature of a final order and a Judicial Magistrate cannot alter or review the same except to correct a clerical or arithmetical error.

Headnote:

CRIMINAL REVISION - JURISDICTION - CHIEF JUDICIAL MAGISTRATE - TERRITORIAL JURISDICTION - PROTEST PETITION - NATURE OF - REVIEW OF ORDER OF COGNIZANCE - INHERENT POWERS - LIMITATION.

Fact of the Case:

The petitioner, an officer of the Food Corporation of India, lodged an FIR at the Vigilance Police Station Berhampur, alleging that the opposite parties had misappropriated an amount of Rs. 1,94,281.67 advanced to them for the purchase of paddy. The investigation revealed that the opposite parties had acted as agents of the Food Corporation of India and had taken an advance of Rs. 4,18,000/- and purchased 9735 quintals of paddy. They delivered only 2503.54 quintals of rice to the Food Corporation of India valued at Rs. 2,52,628.96 and misappropriated the stock of 3025.18 quintals of rice. A final report was submitted in the court on 5-8-1981 which was accepted on 26-8-1981. On 11-9-1981 the petitioner filed a protest petition. On 14-12-1983 the learned Chief Judicial Magistrate passed an order taking cognizance of the offence under S. 406, I.P.C. On 24-8-1984 the opposite parties filed a petition challenging the order of cognizance stating that the protest petition was in the nature of a complaint petition filed before the Chief Judicial Magistrate who had no territorial jurisdiction to entertain it and also for taking cognizance of the offence after acceptance of the final report, filing of the protest petition was not in continuation of the same proceeding and so the order of cognizance was without jurisdiction, according to law; and the protest petition having been treated as a complaint petition filed long after three years of the alleged year of occurrence was barred by limitation under S. 468 of the Cr.P.C. The learned Chief Judicial Magistrate, after hearing both parties, set aside the order of cognizance, dismissed the protest petition and discharged the opposite parties.

Finding of the Court:

The court held that the protest petition was in the nature of a complaint petition and that the Chief Judicial Magistrate had territorial jurisdiction to take cognizance of the offence. The court further held that the Chief Judicial Magistrate had no jurisdiction to review his own order of cognizance and that he could not set aside the same in exercise of inherent powers. The court also held that the question of limitation was not raised by the petitioner and therefore, it did not arise for consideration.

Issues: 1. Whether the Chief Judicial Magistrate had territorial jurisdiction to take cognizance of the offence? 2. Whether the Chief Judicial Magistrate had jurisdiction to review his own order of cognizance? 3. Whether the Chief Judicial Magistrate could set aside the order of cognizance in exercise of inherent powers? 4. Whether the protest petition was barred by limitation?

Ratio Decidendi: 1. The court held that the protest petition was in the nature of a complaint petition and that the Chief Judicial Magistrate had territorial jurisdiction to take cognizance of the offence because the case was instituted and investigated by the State Vigilance Branch and the Chief Judicial Magistrate had been conferred with the powers of a Judicial Magistrate of the First Class in respect of cases instituted and investigated by the State Vigilance Branch in the districts of Kalahandi, Koraput and Phulbani by virtue of notification No. 238-A dt. 30-6-1975 issued by the High Court of Orissa. 2. The court held that the Chief Judicial Magistrate had no jurisdiction to review his own order of cognizance because an order of taking cognizance is in the nature of a final order and a Judicial Magistrate cannot alter or review the same except to correct a clerical or arithmetical error. 3. The court held that the Chief Judicial Magistrate could not set aside the order of cognizance in exercise of inherent powers because a Judicial Magistrate is not vested with inherent powers under the Code to review his own order.

Final Decision: The criminal revision was allowed and the impugned order of the learned Chief Judicial Magistrate, Berhampur, was set aside. The case was remitted to his court so as to take further proceeding according to law.