May 26, 2013 | 03:39 AM (BD Time)
26 May, 2013 Sunday
Functioning of the Magistrate in his judicial capacity
(From previous issue)
"In the instant case, the Bainapatra appears to have been forged by one of the appellants who thereafter produced it in the proceeding, namely the suit for specific performance of a contract described in it. Both the offences-forgery and use of a forged document are closely linked with each other and as such these offences clearly fall very much within the ambit of section 195 (C). No cognizance thereof can be taken except or. a complaint by the court. "
21. In the present case 1st question is whether the order dated 06.03.2006 passed in Petition Case No.4 of 2006 directing the Shalikha Police to treat the petition of complaint as F.I.R. and during the period of investigation the learned Magistrate passed further orders in the proceeding of the said case are the Judicial function or supervisory/executive function of the Magistrate.
22. In order to appreciate the above question we need to examine the provision of law and the authorities in Judicial review.
23. As it appears to us that in earlier case the Bainapatra in question produced in the court of learned Magistrate of cognizance court, who sent the same to the police for treating the same as FIR. and investigate the matter and while the case was so pending the learned Magistrate was pleased to enlarged the accused persons on bail and accorded permission to send the alleged Bainapatra to the handwriting expert for his openion. After investigation the police submitted final report and prayed for sanction to prosecute the informant under section 211 and 109 of the Penal Code
24. In this regard we can mention to the case of Seraj Uddowla-vs-Abdul Kader wherein a High Court Division, at Chittagong, Bench, in Criminal Revision No.53 of 1984, relying upon some decisions of Kolkata High Court, namely Haibat Khan, ILR Cal30, Tayabullah I.L.R. 43 Cal-1152 A.I.R. 1917, Cal 593. Ganga Prasad, A.I.R. 1991 Cal 263, took the view and observed thus:
"It is well settled that a proceeding before a Magistrate within the meaning of section 195 Cr. PC. commences when a complainant makes a complaint before him alleging facts constituting an offence or when a Magistrate takes cognizance of an offence upon a report in writing of such facts by a police officer or when a magistrate takes cognizance of an offence upon receipt of information from a person other than a Police Officer or when the Magistrate does not accept the final report submitted by the police officer after investigation and continues the proceeding against the accused on the basis of narazi petition or suo-moto ordering enquiry or examining witnesses. Orders passed by a Magistrate in respect of a case initiated on the basis of an FIR lodged by an informant at the Police Station ending in discharge of the accused on acceptance of Final Report are not proceedings in a court within the meaning of section 195 Cr PC as it is merely in the category of the "Police Proceedings" under Chapter XlV of the Code of Criminal procedure although such information to the police may come within the ambit of the expression "falsely charges any person" as used in section 211 of the Penal Code."
25. Against the said order of the High Court Division in the above case our apex court, after discussing the relevant law in the appeal, reversed the Judgment of the High Court Division in the light of the decision given by the Indian Supreme Court in the case of Kamala Pati Trivedi-vs-the state of West Bengal, reported in A.I.R. 1979 (SC) 777, as decided by their lordships in the case of Serajuddowla-vs-Abdul Kader and another reported in 45 D.L.R. (AD) 101 our apex court has held:
"During the pendency of police investigation of a cognizable cases the steps that are taken before the Magistrate in relation to production of the accused, granting of bail, etc have held to be proceeding before a court and the functioning of the Magistrate in his Judicial capacity. "
26. Thus the decision in 45 DLR(AD) 101 being the latest position of law dictated by the Appellate Division we hold that the decision given by the Magistrate in the earlier proceeding wherein the Bainapatra in question has been produced is decision given under his judicial capacity.
The earlier proceeding being pending, at least on 31.7.2006. As such the complaint lodged by a private party, namely, the present opposite party No.2, not by the court concerned, during the pendency of the earlier proceeding is barred under section 195 (1) (c) of the Code of Criminal Procedure.
27. Further more, if we read sub section (c) of section 195 (1) along with section 195 (4) of the Code of Criminal Procedure, it would be clear that the offences referred to in sub section (c) when committed in pursuance of conspiracy or in the course of the some transaction, the same will fall within the ambit of sub-section (4) of section 195 including their abetments or attempts independent of the dates of their commission. So, clause (c) of section 195 (1) of the Code of Criminal Procedure bars the jurisdiction of a criminal court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a court in respect of documents when used or produced in that proceeding which empowers only that court, before which the proceeding is taken, to make such complaint.
28. So, we have no hesitation to hold that the alleged Bainapatra has been used in the proceeding of the earlier Petition Case No.4 of 2006 corresponding to G.R. Case No.143 of 2006 and on the basis of the Bainapatra in question, the cognizance court has passed the order dated 06.03.2006 and other order regarding granting of bail of the accuseds, and obtaining the handwriting expert's opinion on the signature in the alleged Bainapatra was a procecding pending before that court. As such during the pendency of such proceeding a complaint lodged by the present opposite party No.2, a private party, not by the concerned court is completely barred under section 195(1)© of the Code of Criminal Procedure.
29. For the discussions made above, we are of the view that the orders passed by the learned Magistrate in the earlier proceeding of the G. R. Case No.34 of 2006, no doubt, were judicial orders, not administrative or supervisory orders. So, only that court has the jurisdiction to make a complaint not a private party.
30. Moreover, the facts and circumstances of the case, as has been disclosed in the petition of complaint of the instant case in its entirety, are not well founded. So, the submissions advance by the learned Advocate for the opposite party No.2 are not the correct exposition of facts and law and as such not-tenable in law. On the contrary the grounds urged by the learned Advocate for the petitioners being the correct exposition of the facts and law of the instant case the same prevail and appear to have a good deal force.
31. In the light of the discussions made herein above we are of the view that initiation and continuation of the proceeding of Shalikha P.S. Non G.R. Case No.143 of 2006 under section 467/468/471, Penal Code, is barred by section 195 (1) (c) of the Code of Criminal Procedure, as such the continuation of the said proceeding is abuse of the process of the court.
33. In the result, the Rule is made absolute. The proceedings of the Shalikha Non-G.R. Case No.143 of 2006, now pending before the Chief Judicial Magistrate, Magura, is hereby quashed.
Office is directed to communicate the order at once.
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