JUDGMENT
Pratibha Upasani, J.
1. This criminal writ petition is filed by the petitioner/original accused-Subhash Ramchandra Durge, being aggrieved by the order of issuance of process, dated 30th July, 1994, passed by the In-charge Judicial Magistrate, First Class, Ichalkaranji. The learned In-charge Judicial Magistrate, First Class, Ichalkaranji by his impugned order in R.C.C. No. 179 of 1994 took cognizance of the private complaint filed by respondent No. 2 Ramesh Annasaheb Gat, under section 211 of the Indian Penal Code and issued process against the petitioner.
2. Few facts, which are required to be stated, are as follows :
The petitioner-Subhash Ramchandra Durge had originally filed complaint dated 30th May, 1986 in the Court of the Judicial Magistrate, First Class, Inchalkaranji, against one Deepak Annasaheb Gat, Ramesh Annasaheb Gat and Anwar Ainuddin Herwade @ Shaikh for offences punishable under section 407 read with section 34 of the Indian Penal Code. The contention of the complainant-Subhash Durge, accused herein, as narrated in the said complaint was that the complainant herein-Ramesh Gat and one Deepak Gat, who were real brothers, along with their driver Anwar Ainuddin Herwade, committed criminal breach of trust with respect to one compressor, which the accused had asked them to deliver at Vipula Construction. The said compressor was taken on hire by the accused and the complainant, his brother Deepak and driver Anwar were entrusted with the said compressor and were supposed to deliver the same to Vipula Construction Pvt. Ltd. According to the accused herein, the said compressor was loaded on the Truck MHL-7315 belonging to the complainant-Ramesh Gat, but that instead of delivering the said compressor to Vipula Constructions, all the said three persons committed breach of trust in their capacity as carriers of the said compressor and, therefore, they were guilty of offence punishable under section 407 read with section 34 of the Indian Penal Code.
3. The learned Judicial Magistrate, First Class, Inchalkaranji, took cognizance of the said complaint and issued process against all the three accused by his order dated 30th May, 1986. Evidence before charge was recorded. However, by his judgment and order dated 31st March, 1994, the learned Judicial Magistrate, First Class, Inchalkaranji, came to the conclusion that the complainant-Subhash Durge, accused herein, had failed to prove his case and acquitted the accused under section 248(1) of the Code of Criminal Procedure, 1973, of the offence punishable under section 407 read with section 34 of the Indian Penal Code. He did not stop at that. He also issued show cause notice to the complainant-Subhash Ramchandra Durge under section 250 of the Code of Criminal Procedure, 1973, asking him to show cause as to why he should not be ordered to pay the compensation to the accused.
4. Being aggrieved by the said judgment and order dated 31st March, 1994, the complainant-Subhash Ramchandra Durge, original accused herein, has filed Criminal Writ Petition No. 1037 of 1994 in this Court, praying that the said impugned order dated 31st March, 1994, passed by the Judicial Magistrate, First Class, Inchalkaranji, be quashed and set aside. This Court by its order dated 4th July, 2000, dismissed the said writ petition.
5. It appears that respondent No. 2, namely, Ramesh Annasaheb Gat, who was accused No. 2 in Writ Petition No. 1037 of 1994, filed complaint dated 16th July, 1994 against original complainant-Subhash Ramchandra Durge and his other two partners of Laxmi Borewell Company under section 211 read with section 34 of the Indian Penal Code in the Court of the Judicial Magistrate, First Class, Inchalkaranji and after referring to the proceedings initiated by the complainant-Subhash Ramchandra Durge with respect to the compressor and the entire history of the proceedings and the judgment and order dated 31st March, 1994 delivered by the Judicial Magistrate, First Class, Inchalkaranji, whereby Ramesh Gat and his brother came to be acquitted and in which the learned Judicial Magistrate, First Class, had issued show cause notice against Subhash Ramchandra Durge under section 250 of the Code of Criminal Procedure, 1973, complainant-Ramesh Gat had prayed that since the complainant-Durge had filed a complaint which was totally false to his knowledge, being Criminal Case No. 226 of 1986, he and his other partners committed offence under section 21 read with section 34 of the Indian Penal Code and, therefore, they be dealt with in accordance with law.
6. The learned In-charge Judicial Magistrate, First Class, Inchalkaranji, took cognizance of this private complaint filed by Ramesh Gat. It is pertinent to note that this complaint was filed under section 211 of the Indian Penal Code.
7. Mr. Gole, appearing for the petitioner-accused, vehemently argued that the learned In-charge Judicial Magistrate, First Class, ought not to have taken cognizance of the complaint which was filed under section 211 of the Indian Penal Code in view of the bar of section 195(1)(b)(i) of the Code of Criminal Procedure, 1973. He submitted that in view of the provision of section 195(1)(b)(i) of the Code of Criminal Procedure, 1973, the Magistrate could have taken cognizance of the complaint only if the said complaint was in writing of that Court or some other Court to which that Court was subordinate. He submitted that in the present case, the complaint is filed by a private complainant and not by the Court though it is only that the finding is given by the Court that the complaint is false and it also issued show cause notice under section 250 of the Code of Criminal Procedure, 1973.
8. Mr. Salvi, the learned A.P.P. appearing for the State also concedes to this position.
9. I have heard both the Advocates at length. I have also perused the impugned order dated 30th July, 1994, passed by the Incharge Judicial Magistrate, First Class, Inchalkaranji and I find substance in the submission of Mr. Gole.
10. Section 195 of the Code of Criminal Procedure, 1973 deals with the provisions with respect to prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The portion which is relevant for the purpose of the present case can be reproduced below:
“(1) No Court shall take cognizance
(a)(i) ……………………………………
(ii) ………………………………………
(iii) ……………………………………..
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) ………………………..
(iii) ……………………….
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.”
11. In short, section 195(1)(b)(i) of the Code of Criminal Procedure, 1973, lays down that for any offence punishable under any section mentioned in that sub clause, no Court shall take cognizance of any offence mentioned in that sub clause except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.
12. In the present case at hand, initially private complaint was lodged by the complainant-Subhash Ramchandra Durge, accused herein, under section 407 read with section 34 of the Indian Penal Code against the present complainant-Ramesh Gat and his brother and driver. The name of the driver was deleted and accused No. 2 Ramesh Gat and his brother were acquitted of the offence. The Magistrate also came to the conclusion that the complaint was false and issued show cause notice under section 250 of the Code of Criminal Procedure. It appears that boldened by this, the present complainant, who was accused No. 2 in the previous case filed another complaint against original complainant-Subhash Ramchandra Durge and his brother under section 211 of the Indian Penal Code. However, the learned Incharge Judicial Magistrate, First Class committed obvious error in taking cognizance of the offence punishable under section 211 of the Indian Penal Code, ignoring bar of section 195 of the Code of Criminal Procedure, 1973. As per the provision of section 195(1)(b)(i) of the Code of Criminal Procedure, 1973, if the complaint is filed under section 211 of the Indian Penal Code (which is included in this sub clause), the complaint has to be in writing and it has to be filed by none else but by the relevant Court. It means, that if the complaint under section 211 of the Indian Penal Code is to be filed, it cannot be filed by a private complainant. The learned Incharge Judicial Magistrate, First Class, Inchalkaranji, therefore, committed error in taking cognizance of the complaint and issuing process against the original complainant-Subhash Durge. The same, therefore, deserves to be quashed. Hence, the following order:
Criminal Writ Petition No. 1424 of 1994 is allowed. The order of issuance of process dated 30th July, 1994, passed by the In-charge Judicial Magistrate, First Class, inchalkaranji in R.C.C. No. 179 of 1994 is hereby quashed. Rule made absolute. Interim order dated 2-12-1994 is hereby vacated.
Petition allowed.
