SINGH, J. - (1.) HEARD the learned counsel for the petitioner and the Public Prosecutor for the State.
(2.) THIS petition under Section 482 of the Criminal Procedure Code has been filed by the petitioner against the order dated 13th March, 1991 passed by the learned Munsif and Judicial Magistrate First Class, Rajgarh, District Churu in Crimi- nal Case No. 133/91 State vs. Ishwar and Another. By the aforesaid order the learned Munsif and Judicial Magistrate, on perusal of the record submitted by the Police under Section 173 of the Criminal Procedure Code and after going through the documents annexed thereto and hearing the arguments of the parties came to the conclusion that the case of the prosecution did not come within the purview of Sections 395 and 397 of the Indian Penal Code but prima facie comes under Sections 147, 148, 149, 341, 323, 325 and 179 was made out. He therefore, registrered the case under Sections 147, 148, 149, 341, 323, 325 and 397 of the Indian Penal Code. Relevant portion of his order may reads as under :'' Ekeyk /kkjk 395] 397 dh ifjf/k esa u vkdj /kkjk 379 Hkk-na-la- dk izrhr gksrk gs vu; vkjksiksa esa /kkjk 147] 148] 149] 341] 323] 325 Hkk-na-la- esa Hkh izfke n`"v;k izdj. k iathc) djus ds vk/kkj i=koyh ij miyc/k gsa** mijksdr foospu ds vuqlkj vfhk;qdrx. k lhkh ds fo#) izdj. k vkjksi i= ds voyksdu ls /kkjk 147] 148] 149] 341] 323] 325 Hkk-na-la- esa ntz djus ds izfke n`"r;k vk/kkj izrhr gq, gs vr% izdj. k bu /kkjkvksa esa iathc) fd;k tkos - - - - - - i=koyh oklrs cgl vkjksi fnukwad 20-1-1991 dks is'k gksa** The aforesaid order was passed on submission of the report under Section 173 in which the police alleged the commission of offences punishable under Sections 147, 148, 149, 341, 323, 325, 395 and 397 of the Indian Penal Code. The learned counsel for the petitioner has submitted that since Police Officer alleged the commission of offences punishable under Sections 395 and 397 of the Indian Penal Code in addition to other offences of which cognizance has been taken by the learned Munsif and Judicial Magistrate, it was not open to the learned Munsif and Judicial Magistrate to refuse to register the offences under Sec- tions 395 and 397 of the Indian Penal Code because offences under Sections 395 and 397 of the Indian Penal Code are triable exclusively by the Court of Session and in view of the provisions of Section 209 of the Criminal Procedure Code the power to discharge an accused, of the offences triable exclusively by the court of Sessions vests in the Session Court and does not vest in the court of Magistrate, therefore the impugned order dated 13th March, 1991 is without jurisdiction, and deserves to be set aside under Section 482 of the Criminal Procedure Code. The learned counsel for the petitioner has cited the ruling of the Apex Court given in Sanjay Gandhi vs. Union of India (1 ). The learned Public Prosecutor has supported the order of the learned Mu- nsif and Judicial Magistrate.
(3.) IN view of above reasons before proceedings to discuss the merits of the argument advanced by the learned counsel for the petitioner it is necessary to scrutinize whether the two assumptions made by the learned counsel for the petitioner (A) that the impugned order was passed at a stage of framing charge against the accused or of committing the case to the Court of Sessions and (B) that the impugned order is an order discharging the accused persons of the offences punishable under Sections 395 and 397 of the INdian Penal Code are correct. I have gone through the whole of the order passed by the learned Judicial Magistrate. Order-sheet dated 12th March, 1991 shows that on that day the learned Judicial Ma- gistrate heard arguments about taking cognizance of the offences because the order sheet reads as below. '' 12-3-1991 ,-ih-ih- mi- vfhk;qdrx. k mi- cgl izlakku lquh xbza oklrs vkns'k 13-3-91 dks is'k gksa** and the order sheet dated 13th March, 1991 which contains the impugned order shows that on that day additional arguments about cognizance were heard and case was ordered to be registered under Sections 147, 148, 149, 341, 323, 325 and 379 of the INdian Penal Code and after taking the accused persons in custody arguments on bail applications were heard and the accused persons were directed to be released on bail and case was ordered to be listed on 20th December, 1991 for ``arguments on charge''. These two order-sheets clearly shows that on 13th March 1991 when the impugned order was passed there was neither the stage of framing charge against the accused nor there was any stage for passing order committal to the Court of Sessions. The stage at which the order was passed by the learned Judicial Magistrate, was the stage of taking cognizance of the offences punishable under Section 190 of the INdian Penal Code which is the stage of institution of the case and was not the stage, of committing the accused to the Court of Sessions under Section 209 of the Criminal Procedure Code nor was that stage of framing the charge or of discharging the accused of any offence. It may be poin- ted out that under the Code of Criminal Procedure the expression ``institution of the case'' has not been defined anywhere. But according to the ruling of the Supreme Court in Jamuna Singh vs. Bhadai Shah (2), a case is said to be instituted when the Magistrate take cognizance of an offence. Their Lordships in the above case observed as below: ``the Code does not contain any definition of the words ``institution of a case''. It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190 (1) of the Code of Criminal Procedure contains the provisions for cognizance of offe- nces by Magistrate. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offence upon a commitment made to it in the manner provided in the Code. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magis- trate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report. '' The contention that by passing the impugned order dated 13th March, 1991 the learned Judicial Magistrate has discharged the accused persons of offences punishable under Sections 395 and 397 of the Indian Penal Code appears to be wholly unfounded. Whenever a Magistrate does not take cognizance of an offence, no matter what is the stage at which the case is pending and drops the proceedings on the ground that cognizance cannot be taken by him of the offence, the order does not amount to an order of discharge or an order of acquittal. In Mohd. Safi vs. State of West Bengal (3), it was urged before their Lordships of the High Court that the order passed by Shri N. C. Ganguly, Judge, Birbhum Special Court amounted to an order of acquittal and, therefore, the appellant could not be tried again on the same facts by Shri T. Bhattacharjee, Judge, Birbhum Special Court for the offence under Section 494 of the Indian Penal Code. The argument was founded on the premises that the order passed by Shri N. C. Ganguly terminating the proceedings against the appellants on the ground that cognizance of the offence could not be taken by him amounted the acquittal within the meaning of Section 403 (1) of the Criminal Procedure Code (1898 ). In that case the appellant was alleged to have committed criminal breach of trust. The offence was investigated into and a charge sheet against the Indian Penal Code by the Officer-in-charge, Government Railway Police, Asansol. The charge sheet was filed in the Court of Judge, Birbhum, Special Court and the case was distributed to the Birbhum Cri LJ 1386 (AIR 1958 Calcutta 612) (4) was also brought to the notice of the learned Special Judge. In the later ruling it was held that where a Magistrate could not legally take cognizance of an offence on the basis of a charge sheet the entire proceedings held that the proceedings pending before him were the appellant because the decisions of the High Court were not available at the time of framing of the charge. He, therefore, acquitted the appellant because in his view the proceedings pending before him were without jurisdiction. Subsequent to the order passed by Shri Ganguly, a formal complaint was preferred by the Public Prosecutor before Shri Bhattacharjee who had succeeded Shri Ganguly. Shri Bhattacharjee took cognizance of the offence under the first proceeding against the accused persons including the appellant. After trial the appellant was convicted under Section 409 of the Indian Penal Code in appeal he took plea that his conviction and sentence after trial held by Shri Bhattarcharjee was barred by Sub-section (1) of Section 403 of the Criminal Procedure Code 1898 as he was already acquitted of the offence by the order passed by Shri N. C. Ganguly. Their Lordships of the Supreme Court held that in order the plea under Section 403 (1) 1898 should be taken it must be shown that the earlier judgment was by a Court of competent Jurisdiction and if the earlier judgment or order was not by a Court of competent jurisdiction, it could not bar the subsequent trial for offence. Regarding the view taken by Shri Ganguly that the proceedings pending before him were without jurisdiction the Supreme Court held that the view taken by Shri Ganguly was erroneous because he could properly took cognizance of an offence and, therefore, the proceedings before him were not vitiated by reason or lack of jurisdiction. But their Lordships held that since Shri Ganguly himself came to the conclusion that he could not have taken cognizance of an offence that the proceedings before him were without jurisdiction, the order pass- ed by him notwithstanding that it used the expression acquittal could not amount to acquittal of the appellant under Section 403 (1) of the Criminal Procedure Code and the second trial by Shri Bhattacharjee was not barred by Section 403 (1) of the Criminal Procedure Code of 1898. What was the nature of order passed by Shri Ganguly who took the view that proceedings pending before him were without ju- risdiction as he could not take the cognizance was also considered by the Supreme Court and their Lordships held that the order did not amount to an order of acquittal as contemplated by Section 403 (1 ). And since the proceedings before the Special Judge ended with that order it would be enough to look at it merely as an order putting a stop to the proceedings. How to determine whether the Court which con- ducted the earlier trial was or was not a Court of competent jurisdiction can be determined with reference to the fact whether that Court could legally take cognizance of the offence and if so whether it had taken cognizance of the offence in accordance with law. Their Lordships observed : ``the competency of a Court, however, depends not merely on the ci- rcumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this taking cognizance of the offence is also material in this regard. Under the Code of Criminal Procedure a Court can take cognizance of an offence only when conditions requi- site for initiation of proceedings before it as set out in Part B of Chapter XV are fulfilled the Court does not obtain jurisdiction to try the offence. '' The observations reproduced above clearly shows that jurisdiction of a Court to conduct a trial against any accused depends on taking cognizance under Section 190 of the Criminal Procedure Code, as a Court of Original Jurisdiction. If the Court has no jurisdiction at all to take cognizance of the offence, such Court cannot take cognizance and in the absence of cognizance it cannot be said to have the jurisdiction to try the case and pass a judicial order in the matter because if jurisdiction is wanting the entire proceeding is nullity. If the court has jurisdiction to take cognizance of an offence then the conditions for taking cognizance of the offence laid down in Chapter XV of the Criminal Procedure Code of 1898 must be fulfilled and if those conditions are not fulfilled the Court in spite of the fact that it has power to take cognizance, cannot take cognizance of the offence and if cogni- zance is not taken further jurisdiction to pass an order would not be available to it. If the Court has power to take cognizance and the conditions for taking cognizance are also fulfilled then too, if the Court does not take cognizance of the offence or erroneously holds that it has no jurisdiction to take cognizance then to it will have to jurisdiction to pass an order of acquittal because it has not taken cognizance of the offence. In Mohd. Safi's case at Page 72 their Lordships observed: ``it is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings before him were in fact not vitiated by reason for lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was himself of the opinion and in- deed he had no option in the matter because he was bound by the decisions of the High Court that he could not take cognizance of the offence and consequently was incompetent to try the appellant. Where a Court comes to such a conclusion, albeit erroneously, it is difficult to appreciate how that Court can absolve the person arraig- ned before it completely of the offence alleged against him. Where a person has done something which is made punishable by law he is liable to face a trial and this liability cannot come to an end merely because the Court before which he was placed for trial forms an opinion that it has no jurisdiction to take cognizance of the offence alleged against him. Where, therefore, a Court says though errone- ously, that it was not competent to take cognizance of the offence it has no power to acquit that person of the offence. An order of acquittal made by it is in fact a nullity. In this connection we might profitably refer to the decision in Yusofalli Mulla Noorbhoy vs. The King, 76 Ind App 158 : (AIR 1949 PC 264 ). That was a case where there was no valid sanction as required by cl. 14 of the Hoarding and Profiteering Prevention Ordinance, 1943 for the prosecution of the appellant therein on separate charges of hoarding and profiteering. The sanction for the prosecution had been granted by the Controller General of Civil Supplies who was authorised to give such sanction by virtue of a notification of the Government of India duly published. Charges were framed by the Magistrate and thereafter further evidence was called for by the prosecution and some of the witnesses were recalled for cross-examination. On the date of hearing, however, counsel for prosecution made a statement to the following effe- ct: ``in view of the High Court decision in Revisional application No. 191 of 1945 as this Court is not competent to try this offence he does not wish to tender the witnesses already lead any further evidence. '' There upon the Magistrate recorded an order in the following terms: ``mr. Mullick's evidence is deleted. Accused acquitted for reasons to be recorded separately. '' After referring to the statement of counsel for the prosecution and the order made on it the Magistrate continued: ``on a perusal of the said decision, however, I find that the filing of this charge sheet by the prosecution itself is invalid in law, because the sanction is signed by the Controller- General under a Notification of the Government of India, and the said Notification does not state that the various officers therein mentioned are not below the rank of a District Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided for in law. As, however, the invalidity of the sanction invalidates the prosecution in Court, the accused was acquitted. '' The Government filed an appeal against the order of acquittal. The High Court allowed it and set aside the orders of the Magistrate acquitting the appellant and directed that the case should be tried by another Magistrate having jurisdiction to try it and dealt with according to law. Against the decision of the High Court the appellant took an appeal to the Privy Council. The Privy Council accepted the view of the Fedral Court in Basdeo Agarwalla vs. King-Emperor 1945 FCR 93 : (AIR 1945 FC 16), that the prosecution launched without valid sanction is invalid and held that under the common law a plea of anterfois acquit or convict can only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction. Unless the earlier trial was a viction, the accused was never in jeopardy. The principle upon which the decision of the Privy Council is based must apply equally to a case like the present in which the Court which made the order of acquittal was itself of the opinion that it had no jurisdiction to proceed with the case and, therefore, the accused was not in jeopardy. '' ;