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Surajmani Srimali Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in48(1979)CLT625; 1980CriLJ363
AppellantSurajmani Srimali
RespondentState of Orissa
Cases ReferredBholanath Amritlal Purohit v. State of Gujarat
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - was endorsed by the inspector of police to shri r. that being the position in the present case, the prosecution must fail......of the offences after expiry of the period of limitation provided under section 468 of the code of criminal procedure, 1973. after hearing the parties, the learned magistrate rejected the petition holding that the prosecution had been launched by a competent person and that although the offences under sections 18 and 21 were barred by limitation, the offence under section 20 of the regulation being a continuing offence it was not barred by limitation.3. mr. ashok mukherjee, the learned counsel appearing on behalf of the petitioner advanced the following contentions:(1) the sub-inspector of police who submitted the charge-sheet has not been appointed as an inspector under section 15 of the regulation. (2) cognizance of the offences could not be taken on a charge-sheet submitted by.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This Criminal Revision is directed against an order dated 10-7-79 passed by the Judicial Magistrate second class, Panposh refusing to drop the proceedings and discharge the accused in G. R. Case No. 710 of 1976.

2. On 5-6-76, one Nityananda Mohapatra, who is a P. W. D. contractor, lodged a first information report before the Inspector of Police, Rourkela Section (Sector)- 10 Police Station, alleging that in the year 1973 he had incurred some loans from the accused (Petitioner here) on pledge of an Ambassador car, a Kirloskar 5 H. P. Pump-set and some gold ornaments weighing about 2 1/2 tolas and that although he had repaid the entire loan with interest by May, 1975 the pledged articles were not returned to him and the accused was attempting to convert the same to his own use. The F, I. R. was endorsed by the Inspector of Police to Shri R. K. Mohapatra, Sub-Inspector of Police, who registred a case under Section 406, I. P. C. against the accused and took up investigation. After completion of investigation, he submitted a charge-sheet under Sections 19, 20 and 21 of the Orissa (Schedule Area) Money-Lenders' Regulation, 1967 (hereinafter referred to as the 'Regulation'). The charge-sheet was received by the learned S. D. J. M., Panposh on 14-2-1977, when he took cognizance of the offences and directed issue of summons to the accused. The accused filed a petition on 26-3-1979 for dropping the criminal proceedings on the grounds that (1) there was no complaint in writing made by an Inspector appointed under Section 15, as required under Section 23 of the Regulation and (2) the court could not take cognizance of the offences after expiry of the period of limitation provided under Section 468 of the Code of Criminal Procedure, 1973. After hearing the parties, the learned Magistrate rejected the petition holding that the prosecution had Been launched by a competent person and that although the offences under Sections 18 and 21 were barred by limitation, the offence under Section 20 of the Regulation being a continuing offence it was not barred by limitation.

3. Mr. Ashok Mukherjee, the learned Counsel appearing on behalf of the petitioner advanced the following contentions:

(1) The Sub-Inspector of Police who submitted the charge-sheet has not been appointed as an Inspector under Section 15 of the Regulation.

(2) Cognizance of the offences could not be taken on a charge-sheet submitted by the police, as Section 23 of the Regulation requires a complaint in writing.

(3) The offences alleged against the petitioner are barred by limitation,

4. The first contention is not acceptable in view of the fact that by Government Notification No. 13995-STAT-12/74/IRW., dated the 6th June 1974 published in the Orissa Gazette, Part I, dated the 18th October, 1974, all the Sub-Inspectors of Police have been appointed to discharge the functions of the Inspector under Section 15 of the Regulation.

5. The second contention is that the Magistrate had no jurisdiction to take cognizance of the offences without a complaint in writing as contemplated under Section 23 of the Regulation,

Section 23 of the Regulation provides as follows:

23 (1) No Court shall take cognizance of an offence punishable under this Regulation except on a complaint in writing made by the Inspector appointed under Section 15 or such other officer or authority as may be prescribed.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 2 of 1974 all offences punishable under this Regulation excepting those punishable under Section 20-A, shall be cognizable and bailable.

It is argued that a charge-sheet submitted by the police cannot be regarded as a complaint in writing and without a complaint as defined in the Criminal Procedure Code, the Magistrate had no jurisdiction to take cognizance of the offences. 'Complaint' has been defined in Section 2 (d), Cr. P. C. as follows:

'Complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report;

Explanation : - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

It is clear, from the above provisions that a charge-sheet submitted by the police in respect of a cognizable offence cannot be held to be a complaint as defined in the Code. A complaint in' writing is a sine qua non under the mandatory provisions of Section 23 of the Regulation. A bare perusal of this section demonstrates this position. The purpose behind Section 23 is that the persons carrying on business of money-lending should not be harassed with frivolous prosecutions. The mandate of this section is that the Magistrate should not take cognizance of an offence unless there is a formal complaint 9s contemplated under the Code of Criminal Procedure. If the provision of any law gives jurisdiction only on the compliance of a certain condition precedent, then non-compliance of such a provision goes to cut at the root of the jurisdiction of the Court.

6. I may refer to the decision of the Supreme Court in the case of Abdul Rahman v. Mohomed Naji Ahmad : 1960CriLJ158 where it has been pointed out (at page 8&) that the provisions of Section 198, Criminal Procedure Code requiring a complaint by some person aggrieved by the offence punishable under Chapter XX of the Indian Penal Code are mandatory and that there can be no conviction for an offence referred to in Section 198 or Section 199 where no complaint has been made as required by these sections. Reference may also be made to the decision of the Supreme Court in the case of H. N. Rishbud v. State of Delhi : 1955CriLJ526 where it has been observed that Section 193 and Sections 195 to 199 regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. I may also refer to the decision of the Supreme Court in the case of W. Slaney v. State of M.P. : 1956CriLJ291 where it has been observed as follows;-

Of course lade of competency of jurisdiction, absence of a complaint by the proper person or authority specified want of sanction prescribed as a condition precedent for a prosecution, in short defects that strike at the very root of jurisdiction stand on a different footing and proceedings taken in disregard or disobedience would be illegal.

In a recent decision of the Supreme Court in the case of Bholanath Amritlal Purohit v. State of Gujarat 1970 SCC (Cri) 469, the accused was convicted under Section 55 of the Indian Post Office Act, 1898. Cognizance of the offence had been taken on a charge-sheet submitted by the police. The conviction was challenged on the sole ground that the trial was illegal as the case was not proceeded on the basis of a complaint as required by Section 72 of the Indian Post Office Act. That section provides:

No Court shall take cognizance of an offence punishable under any of the provisions of sections ...of this Act, unless upon complaint made by order of, or under authority from, the Director General or a Post Master General.

Although the police investigation had been launched on the basis of the information given by the postal authorities and after obtaining sanction of the concerned Post Master General, their Lordships set aside the conviction holding as follows:

If we understand the word 'complaint' in Section 72 of the Act as denned under Section 4(1)(h) of the Cr. P. C., as we think we should, then there was admittedly no 'complaint' against the appellant which means that the learned Magistrate was incompetent to take cognizance of the case. From that it follows that the trial of the case was an invalid one and that the appellant was convicted without the authority of law.

This is a clear authority for the proposition that absence of a complaint as required by law would strike at the very root of the jurisdiction of the court to take cognizance of an offence. That being the position in the present case, the prosecution must fail.

7. In view of my above findings, it is not necessary to deal with the third contention of Mr. Mukherjee regarding the bar of limitation.

8. In the premises aforesaid, the Criminal Revision is allowed and the criminal proceedings started against the petitioner in G. R. Case No. 710 of 1976 (Tr. 70/77) are quashed.


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