Skip to content


Jaladhar SwaIn and ors. Vs. Smt. Suchitra SwaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 184 of 1982
Judge
Reported in1985(I)OLR603
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 177, 178 and 482; Indian Penal Code (IPC), 1860 - Sections 420
AppellantJaladhar SwaIn and ors.
RespondentSmt. Suchitra SwaIn and anr.
Appellant AdvocateR. Mohanty, Adv.
Respondent AdvocateA. Pasayat, Adv.
DispositionRevision allowed
Cases ReferredSee Narumal v. State of Bombay
Excerpt:
.....even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and (iii) where the allegations made against the accused person do constitute an offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is mainfestly and clearly inconsistent with the accusation made and a case where there is legal evidence which, on its appreciation, may or may not support the accus this is an appropriate case coming within category (ii) of the categorisation made in the judgment of my learned brother justice behera in the..........namely :(i) no part of the cause of action having arisen within the jurisdiction of the chief judicial magistrate at cuttack and the offences, if any having been committed at kanpur, the chief judicial magistrate, cuttack, has no jurisdiction;(ii) the allegations made in the complaint petition indicate that the dispute is of civil nature and, therefore, no criminal offence can be said to have been committed for any act of commission or omission of the petioners as alleged in the complaint petition; and(iii) the averments in the complaint petition and the statement of the complainant recorded by the magistrate taken on their face value, as they are, without any addition or substraction do not make out any offences particularly, the offences for which cognisance has been taken and,.....
Judgment:

G.B. Pattnaik, J.

1. Petitioners are the accused persons in a complaint case bearing number ICC 136 of 1982, pending in the Court of the Chief Judicial Magistrate, Cuttack.

2. A complaint was fried by opposite party No. I making allegations against the petitioners to the effect that they had committed offences under Sections 380, 324, 510, 109, 323, 420 and 379, Indian Penal Code. After taking the initial statement of the complainant by order dated 15.4.82. the learned Magistrate took Code against of the offences under Section 420, 323, 500 and 504 and 379, Indian Penal Code against the accused petitioners and issued summons to the accused fixing their appearance to 10.5.1982. The petitioners in this revision have invoked the inherent power of this Court to quash the said order taking Code against and to quash the criminal proceedings pending before the learned Magistrate.

3. Mr. Mohany, the learned counsel for the petitioners, raises three submissions in support of the prayer to quash the cognisance, namely :

(i) No part of the cause of action having arisen within the jurisdiction of the Chief Judicial Magistrate at Cuttack and the offences, if any having been committed at Kanpur, the Chief Judicial Magistrate, Cuttack, has no jurisdiction;

(ii) The allegations made in the complaint petition indicate that the dispute is of civil nature and, therefore, no criminal offence can be said to have been committed for any act of commission or omission of the petioners as alleged in the complaint petition; and

(iii) The averments in the complaint petition and the statement of the complainant recorded by the Magistrate taken on their face value, as they are, without any addition or substraction do not make out any offences particularly, the offences for which cognisance has been taken and, therfore, in exercise of the inherent jurisdiction, this Court should quash the criminal proceeding.

Mr. Pasayat, the learned counsel for the complainant-opposite party No. 1 on the other hand submits that the allegations in the complaint petition together with the initial statement of the complainant to make out the offences for which cognisance has been taken and, therefore there is no case for exercise of inherent power of this Court to quash the order of cognisance. He further submits that the offence of cheating under Sec 420, Indian Penal Code admittedly having been committed within the jurisdiction of the Chief Judicial Magistrate, Cuttack, even if all other offences are committed outside the jurisdiction of the Magistrate, at Cuttack, by virtue of Section 178(d) of the Code of Criminal Procedure, the Chief Judicial Magistrate, Cuttack, will have the jurisdiction to enquire into the case and try the offences.

4. Before examining the rival contentions raised by the learned-counsel for the petitioners and opposite party No. 1, it is necessary to bear in mind the limitation in the matter of exercise of the inherent power to interfere with an order taking cognisance. It is an accepted principle of law that the High Court would exercise is inherent jurisdiction to quash a criminal proceeding in an appropriate case to prevent an abuse of the process of Court and to secure the ends of justice. No inflexible rule can be laid down but yet in some judicial decisions certain illustrations have been given to indicate where such inherent jurisdiction can be exercised. In the case of Satrughana Dalabehera and others v. State, 1983 C.L.R., 303 may learned brother Justice Behera, has exhaustively dealt with this aspect. I would merely extract a portion of the said judgment :

' Ordinarily a criminal proceeding initiated against an accused person must be tried under provisions of the Code and the High Court would be reluctant to interfere at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. Some of the categories of cases where the inherent jurisdiction to quash a proceeding can and should be exercised are (1) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, (ii) where the allegations in the first information report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and (iii) where the allegations made against the accused person do constitute an offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is mainfestly and clearly inconsistent with the accusation made and a case where there is legal evidence which, on its appreciation, may or may not support the accusation in question..'

I shall now examine the meterials on record in the light of the aforesaid decision to find out the correctness of the submissions made by Mr Mohanty for the petitioners.

5. Of all the allegations regarding commission of different offences by the petitioners, as made out in the complaint petition the allegation with regard to the offence of cheating is that the same has been committed within the jurisdiction of the Chief Judicial Magistrate Cuttack, and the rest of the offences have been committed at Kanpur. Therefore, if it is held that the complainant has prima fade been able to satisfy the Magistrate with regard to the offence of cheating then obviously under Sub-section (d) of Section 178 of the Code of Criminal Procedure, the Chief Judicial Magistrate would have jurisdiction to try all the offences. The moot question, therefore, would be to find out whether an offence of cheating is made out prima facie against the petitioners or not. The averments made in that regard are in paragraph 8(n) of the complaint petition. That paragraph states that accused No. 1 had taken Rs. 25,000/- in presence of accused Nos. 2 and 3 at the time of marriage at Cuttack and the same was said to have been utilised in a family partnership firm called Romi and Brothers and when the complainant left Kanpur, which is the place of her father-in-law, neither the money nor any account of profit and loss of capital was given to the complainant. These, according to the complainant, constitute the offence of cheating. In her initial statement the complainant merely reiterates as to what was stated in the complaint petition. The question, therefore, which arises for consideration is whether the averments made in paragraph 8(n) of the complaint petition constitute an offence of cheating or not.

6. To constitute an offence of cheating, it must be established that there was deception of a person ; fraudulent or dishonest inducement of that person to deliver any property to any person or to consent to a property being retained by any person ; or intention inducement of that person to do or omit to do anything causing or likely to cause hurt to that parson in body, mind, reputation or property. The averments made in paragraph 8(n) of the complaint petition or the initial statement of the complainant recorded in this case do not indicate an iota of deception or any dishonest or fraudulent inducement made by accused No. 1 or any other accused persons, which made the complainant or her parents to part with Rs. 25,000/- at Cuttack. Further, there is no assertion to the effect that it was represented by the accused parsons that the said money would be utilised in a family partnership firm. Necessarily, therefore, in my opinion, none of the ingredient of the offence of cheating has been established. The complainant has to establish in the present case that either she or her parents on her behalf, being induced or being deceived by the accused parson? parted with Rs. 25,00.0/- on a clear representation that the amount would be used in the partnership firm and the complainant would be entitled to any profit arising out of the same. There is no whisper that a sum of Rs. 25,000/- was parted with on any inducement having been emanated from accused No. 1 or for that matter from any other accused persons. The averments made in paragraph 8(n) together with the initial statement of the complainant recorded in this case, taken in entirety and on their face value, do not constitute the offence of cheating and in that view of the matter, the cognisance taken of the offence under Section 420, Indian Penal Code, is invalid and must be quashed. This is an appropriate case coming within category (II) of the categorisation made in the judgment of my learned brother Justice Behera in the reported case {supra) where the inherent power of the Court should be exercised to quash the cognisance as well as the criminal proceeding itself. I would accordingly hold that the learned Chief judicial Magistrate committed gross error of law in taking cognisance of the offence under Section 420, Indian Penal Code, and, therefore, set aside the same

7. In view of my conclusion and the direction in respect of the offence under Section 420, Indian Penal Code, this criminal proceeding cannot be continued before the Chief Judicial Magistrate, Cuttack. Under Section 177 of the Code of Criminal Procedure, every offence is ordinarily to be enquired into and tried by a Court within whose local jurisdiction it was committed. This word 'ordinarily' has been interpreted by 5he Supreme Court to mean 'except where otherwise provided in the Code or other law'. {See Narumal v. State of Bombay, A. I. R. 1960 S. C, 1329). The allegations in the complaint petition in respect of all other offences are that the same have been committed at Kanpur and not at Cuttack. Therefore, it is the Court at Kanpur which has jurisdiction to try such offences. The Chief Judicial Magistrate at Cuttack could have tried the same, had the offence under Section 420, Indian Penal Code, said to have been committed admittedly within the jurisdiction of the Chief Judicial Magistrate, Cuttack, been there, so that provision of Section 178(d) of the Code of Criminal Procedure would have applied. But since I have already quashed the cognisance taken under Section 420, Indian Penal Code, for all other offences alleged in the complaint petition, the Magistrate who has jurisdiction to try the same is the Magistrate at Kanpur since those offences are said to have been committed at Kanpur. The necessary consequence, therefore, would be that the Chief Judicial Magistrate, Cuttack, would have no jurisdiction to continue the proceeding in respect of all other offences.

8. It is not necessary for me in view of my conclusions as aforesaid, to examine the third submission of Mr. Mohanty as to whether the dispute in this case is of civil nature or not.

9. In the result, therefore, the cognisance of the offences under Section 420, Indian Penal Code, taken by the Chief Judicial Magistrate, is hereby quashed and also the criminal proceeding in ICC No. 136 of 1982 before the Chief Judicial Magistrate, Cuttack is quashed. This criminal revision is accordingly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //