Anantha Bhakta Vs. R. Kannan and Another - Court Judgment

Excerpt:
- constitution of india -- article 226; [a.s. bopanna, j] jurisdiction under held, high court will have jurisdiction regarding the statutory contracts and not a non statutory contracts. proper remedy is to work out through the competent civil court. order1. heard the learned counsel for the revision petitioner, the learned counsel for contesting respondent 1 and the learned government pleader for respondent 2. 2. in this revision petition, the order dated 18-7-1995 passed by c.j.m., shimoga, in c.c. no. 61 of 1992 has been challenged. 3. by the impugned order, the c.j.m., quashed the proceedings in c.c. no. 61 of 1992 pending on his file. 4. the revision petitioner was the complainant in c.c. no. 61 of 1992. the present respondent 1 kannan was the accused in that case. 5. the present revision petitioner-complainant filed p.c.r. no. 37 of 1987 on the file of the learned j.m.f.c., sagar. the j.m.f.c. referred the complaint under section 156(3), cr. p.o., to the police for investigation and report. after investigation, the police filed charge-sheet in c.c. no. 995 of 1988 for the offence under sections 420, 468 and 471, ipc. 6. the learned magistrate took cognizance and issued summons to the accused (present respondent 1). the present respondent 1-accused challenged the proceedings before the j.m.f.c. in criminal petition no. 517 of 1989 on the file of this court. 7. this court in cr. p. no. 517 of 1989 quashed the proceedings holding that the proceedings before the j.m.f.c. were in contravention of section 177, cr. p.c. 8. this court has made it clear that if the complainant (present revision petitioner) feels that the accused has committed any offence and the accused deserves to be tried, he (complainant) was at liberty to initiate the proceedings before the appropriate forum. 9. in view of the order passed by this court in cr. p. no. 517 of 1989 dated 21-8-1991, the complainant filed criminal miscellaneous no. 4 of 1992 under section 410, cr. p.c., before the learned c.j.m., shimoga. 10. the learned c.j.m., passed the following order on 6-2-1992: 'heard the counsel for petitioner. perused the records and also the order of hon'ble high court. having gone through the records, it is found that entertaining of the complaint is without jurisdiction of the j.m.f.c., sagar. in view of the report of the police making a case against accused for the offences punishable under sections 420 and 468, this court in exercising its powers under section 410, cr. p.c. can withdraw the case in c.c. no. 995 of 1988 from j.m.f.c., sagar. put up the proceedings and call on 24.2.1992'.the c.j.m., issued summons to the accused and the trial was proceeded with. the order dated 6-2-1992 was passed by the c.j.m., who was then presiding over the court. 11. after completion of the trial (7 p.ws. were examined and 1-d.w. was examined), the c.j.m., who was presiding over the court on 18-7-1995, heard the arguments on merits and passed the impugned order dropping the proceedings. 12. it is not clear under what provision the c.j.m., dropped the proceedings holding that he has no jurisdiction. 13. i have already adverted to the order passed by the c.j.m., on 6-2-1992 (the then presiding officer). the c.j.m., who was presiding over the court on 18-7-1995, while dropping the proceedings, has observed, 'but surprisingly my learned predecessor by the aforesaid order, got the case file transferred from the file of the addl. j.m.f.c, sagar, to his file and after registering the case issued summons which in my view is improper and cannot be sustained'. the learned c.j.m., who was presiding over the court on 18-7-1995, has come to the conclusion that his predecessor has misconstrued the order passed by this court in cr. p. no. 517 of 1989. 14. from the facts narrated above, it is obvious that the learned c.j.m., who passed the impugned order has taken upon himself the function of an appellate court. he has committed a judicial impropriety. if there was anything wrong with the order passed by his predecessor, it was open to the aggrieved party to get that order corrected in a higher forum. it is highly significant to note that the accused did not raise any objection in the court below for the procedure adopted by the then c.j.m. 15. to repeat, the learned c.j.m., who passed the impugned order has committed a clear illegality. the order is perverse and it cannot be sustained. 16. it is argued by the learned counsel for respondent 1 accused that the application of section 410, cr. p.c., was wrong. it is open to address this argument if available in law at the time of final arguments on merits before the learned c.j.m. 17. for the aforesaid reasons, the revision petition is allowed and the impugned order is set aside. the matter is remitted back and the learned c.j.m., is directed to proceed with the criminal case in accordance with law and dispose of the same.

Judgment:
ORDER

1. Heard the learned Counsel for the revision petitioner, the learned Counsel for contesting respondent 1 and the learned Government Pleader for respondent 2.

2. In this revision petition, the order dated 18-7-1995 passed by C.J.M., Shimoga, in C.C. No. 61 of 1992 has been challenged.

3. By the impugned order, the C.J.M., quashed the proceedings in C.C. No. 61 of 1992 pending on his file.

4. The revision petitioner was the complainant in C.C. No. 61 of 1992. The present respondent 1 Kannan was the accused in that case.

5. The present revision petitioner-complainant filed P.C.R. No. 37 of 1987 on the file of the learned J.M.F.C., Sagar. The J.M.F.C. referred the complaint under Section 156(3), Cr. P.O., to the police for investigation and report. After investigation, the police filed charge-sheet in C.C. No. 995 of 1988 for the offence under Sections 420, 468 and 471, IPC.

6. The learned Magistrate took cognizance and issued summons to the accused (present respondent 1). The present respondent 1-accused challenged the proceedings before the J.M.F.C. in Criminal Petition No. 517 of 1989 on the file of this Court.

7. This Court in Cr. P. No. 517 of 1989 quashed the proceedings holding that the proceedings before the J.M.F.C. were in contravention of Section 177, Cr. P.C.

8. This Court has made it clear that if the complainant (present revision petitioner) feels that the accused has committed any offence and the accused deserves to be tried, he (complainant) was at liberty to initiate the proceedings before the appropriate forum.

9. In view of the order passed by this Court in Cr. P. No. 517 of 1989 dated 21-8-1991, the complainant filed Criminal Miscellaneous No. 4 of 1992 under Section 410, Cr. P.C., before the learned C.J.M., Shimoga.

10. The learned C.J.M., passed the following order on 6-2-1992:

'Heard the Counsel for petitioner. Perused the records and also the order of Hon'ble High Court.

Having gone through the records, it is found that entertaining of the complaint is without jurisdiction of the J.M.F.C., Sagar. In view of the report of the police making a case against accused for the offences punishable under Sections 420 and 468, this Court in exercising its powers under Section 410, Cr. P.C. can withdraw the case in C.C. No. 995 of 1988 from J.M.F.C., Sagar.

Put up the proceedings and call on 24.2.1992'.

The C.J.M., issued summons to the accused and the trial was proceeded with. The order dated 6-2-1992 was passed by the C.J.M., who was then presiding over the Court.

11. After completion of the trial (7 P.Ws. were examined and 1-D.W. was examined), the C.J.M., who was presiding over the Court on 18-7-1995, heard the arguments on merits and passed the impugned order dropping the proceedings.

12. It is not clear under what provision the C.J.M., dropped the proceedings holding that he has no jurisdiction.

13. I have already adverted to the order passed by the C.J.M., on 6-2-1992 (the then Presiding Officer). The C.J.M., who was presiding over the Court on 18-7-1995, while dropping the proceedings, has observed, 'But surprisingly my learned predecessor by the aforesaid order, got the case file transferred from the file of the Addl. J.M.F.C, Sagar, to his file and after registering the case issued summons which in my view is improper and cannot be sustained'. The learned C.J.M., who was presiding over the Court on 18-7-1995, has come to the conclusion that his predecessor has misconstrued the order passed by this Court in Cr. P. No. 517 of 1989.

14. From the facts narrated above, it is obvious that the learned C.J.M., who passed the impugned order has taken upon himself the function of an Appellate Court. He has committed a judicial impropriety. If there was anything wrong with the order passed by his predecessor, it was open to the aggrieved party to get that order corrected in a higher forum. It is highly significant to note that the accused did not raise any objection in the Court below for the procedure adopted by the then C.J.M.

15. To repeat, the learned C.J.M., who passed the impugned order has committed a clear illegality. The order is perverse and it cannot be sustained.

16. It is argued by the learned Counsel for respondent 1 accused that the application of Section 410, Cr. P.C., was wrong. It is open to address this argument if available in law at the time of final arguments on merits before the learned C.J.M.

17. For the aforesaid reasons, the revision petition is allowed and the impugned order is set aside. The matter is remitted back and the learned C.J.M., is directed to proceed with the criminal case in accordance with law and dispose of the same.