Judgment:
K.G. Jagadeb Roy, J.
1. The petitioner who has been shown as one of the accused persons in a complaint petition filed by the Opposite Party No. 1 in the court of the Sub-Divisional Judicial Magistrate, Sadar, Cuttack has preferred this Misc. Case challenging the order dated 16-1-1986 of the S.D.J.M. in I.C.C. case No. 12 of 1986 taking cognizance against him under Sections 420 and 406 of the I.P.C.
2. Learned Counsel appearing for the petitioner challenges the order on the ground that on a plain reading of the complaint petition and for the sake of argument accepting the entire allegation to be true, no prima facie case against him has been made out either under Section 420 or under Section 406 of the I.P.C. and the learned S.D.J.M. without proper application of mind and without following the test that is required of him while taking cognizance has taken such Cognizance contrary to law resulting unnecessary harassment to him and prays for quashing the order. In the complaint petition which is annexed as Annexure-1 to this Misc. Case, the complainant had alleged that he runs a business of letting out dynamo to different cinema houses on rental basis and the accused No. 1 who runs a cinema at Nayagarh had obtained a particular dynamo of German make on hire basis on a monthly rent of Rs. 1800/- and took the dynamo from the complainant for running the cinema by name Durga Cinema at Nayagarh. Since he failed to pay the agreed amount, the complainant made several efforts to recover the money from him but failed. According to the complaint petition, on 2-6-1984 accused No. 1 came to Cuttack with the present petitioner (Accused No. 2) and requested the complainant to allow him to operate the said dynamo on hire basis for a further period of one year at the same rate of Rs. 1800/- per month and promised to clear up the arrear dues that had already accrued on him. Accused No. 1 then purchased stamp paper and a document was duly executed by the parties in presence of the witnesses. Even thereafter accused No. 1 failed to pay the amount as agreed upon and the complainant being seriously ill sent his son to accused No. 1 on 2-10-1984. Though the accused No. 1 made false promises to pay ultimately failed to make any payment alleging that the company was running at a loss and it was difficult for him to make payment as agreed upon. When the accused No. 1 was approached by the complainant in Nov. 1985 he promised to deliver the dynamo within fifteen days along with the arrear dues at Mangalabag residence of the complainant. The complainant after several attempts to recover failed to recover the money and receive back the dynamo from him. Later he went to Nayagarh where the cinema house is situated and came to know that the dynamo was to be sold to some outsiders. The dynamo was, however, found in the premises of the present petitioner who is a friend of the accused No. 1. It is alleged in the complaint petition that the present petitioner kept the stolen dynamo belonging to the complainant and is liable for receiving the stolen property. His further allegation was that the two accused persons were negotiating to sell the dynamo which was taken by accused No. 1 from the complainant and made an application for search warrant to recover the dynamo.
3. On a plain reading of the complaint petition, therefore, no case is made out against the petitioner (Accused No. 2) for having committed any offence under Section 420 or Section 406 of the I.P.C. assuming everything alleged in the complaint petition are true. Neither there was any entrustment of the dynoma made by the complainant to accused No. 2, the present petitioner, nor there is an allegation that the petitioner cheated and thereby dishonestly induced the complainant to deliver the dynamo to the petitioner. Therefore there was no basis for the Magistrate to take cognizance against Accused No. 2 for having committed any of these offences, e.g., offence under Sections 420 and 406 of the I.P.C. Further the complainant did not make out a case that the dynamo was stolen and the accused No. 2 was receiver of the stolen property and rightly the Magistrate has not taken cognizance of that allegation against the petitioner.
4. The law on the point is very clear. At the stage of cognizance, the statements on evidence should not be shifted and no attempts should be made to find out by critical appreciation if the alleged statements against a person are true or not, yet for the purpose of taking cognizance, the court is bound to apply strictly the standards of test to merely find out if the materials alleged against the accused are sufficient to make out a prima facie case of offence alleged to have been committed by him. The Magistrate has been given discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion, it is not for the High Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if approved, would ultimately end in conviction of the accused. These contradictions are totally foreign to the scope and ambit of an inquiry under Section 202 of the Cr.P.C. which culminates into an order under Section 204 of the Criminal P.C.
5. In a case reported in (1992) 34 CJD Cri 109 : (1992 Cri LJ 2904) Satyanarayan Mohapatra v. State, this Court while considering whether an order of framing charges can be challenged in revision before the High Court held that framing of charges is an interlocutory order and since a bar has already been engraved under Section 397(2) Cr.P.C. a criminal revision is not maintainable, but this is subject to some exceptions ignoring absence of necessary sanction for prosecution and orders showing absence of jurisdiction obviously fall within such category. When cognizance has been taken ignoring the absence of necessary sanction statutorily required for prosecution and order which was without jurisdiction. When the complaint petition or any statement on oath does not make out a case against the petitioner, the Magistrate is therefore acting without jurisdiction in entertaining the application. The bar under Section 397(2) of the Cr.P.C. will not therefore apply to such an order which being without jurisdiction will be treated in the eye of law as no order at all, even though it is in the form and shape an interlocutory order. The revision is therefore maintainable.
6. The Division Bench of this Court had held such a view in a case reported in 1976 Cri LJ 446 (Satyabrata Bhatacharya v. Jarnal Singh) which reads thus at page 448 :
The only other difficulty in the path of the petitioner is whether the High Court would interfere in criminal revision despite the ban imposed under Section 397(2) that interlocutory orders cannot be revised.
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On our finding that the complaint petition and the statement on oath do not make out any offence, the Magistrate had no jurisdiction to issue process to the expetitioner for the trial of an offence. The Magistrate gets jurisdiction only when an offence is alleged to have been committed and there being no offence he should have dismissed the complaint petition on the very face of it.
The Hon'ble Supreme Court in a case reported in AIR 1976 SC 1947 : (1976 Cri LJ 1533) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi has also held thus in the following words :
Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside.
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible, and
(4) Where the complaint suffers from fundamental legal defects, such complaint by legally competent authority and the like.
7. In a later decision of the Supreme Court, reported in AIR 1989 SC 2222 : (1989 Cri LJ 2301) State of U.P. through C.B.I. S.P.E., Lucknow v. R.K. Srivastava, it is held thus at page 2303 (of Cri LJ) :--
It is a now well settled principle of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed.
In the present case, Mr. Sarangi, learned Counsel appearing for the petitioner urges that the entire allegation made in the complaint or the statements made by the witnesses in support of the same even if taken in the face value do not make out any case against the accused as the complaint does not disclose any essential ingredients of any of the offences which are alleged against the accused and the discretion that is vested with the Magistrate have been exercised capriciously and arbitrarily having been based on no evidence there being no material whatsoever on the basis of which cognisance could have been taken. I carefully went through that statement of the complainant which is annexed to this Misc. Case and do not find any material to sustain prima facie a charge either under Section 420 or 406 of the I.P.C. against the present petitioner. I, therefore, hold that there was no basis for taking cognizance against the petitioner either under Section 420 or under Section 406, I.P.C. The impugned order taking the cognizance is therefore quashed.
8. The Criminal Misc. Case is allowed.