Bhojraj Kisan Bhagat vs State of Maharashtra and Others

S.T. Kharche, J.—By invoking the jurisdiction of this Court u/s 482 of the Code of Criminal Procedure the order dated 31-12-2001 passed by the learned J.M.F.C. in Summary Criminal Case No. 733 of 1998 has been challenged whereby the complaint lodged by respondent No. 2 was registered as regular criminal case for the offences punishable u/s 161 of the Indian Penal Code and under Sections 145 and 147(e) of the Bombay Police Act.

Brief facts are as under :

(a) Respondent No. 2 and his driver Sheikh Amir were facing criminal prosecution for contravention of the provisions of Motor Vehicles Act, bearing Summary Cri. Case No. 773 of 1998, pending on the file of learned J.M.F.C. The accused in that case had remained absent and, therefore, the learned Magistrate had issued non-bailable warrants for securing their presence.

(b) The petitioner was working as Head Constable at the police station, to whom the non-bailable warrants were given for execution. On 21-10-2001 the petitioner had gone for execution of the warrants and that time he is said to have demanded Rs. 5,000/- from respondent No. 2 for showing favour that he would not be arrested and if he fails to pay the aforesaid amount he would be arrested, paraded in public view and would be sent to jail. Respondent No. 2 is said to have paid the amount of Rs. 4,000/- and thereafter he appeared before the learned J.M.F.C. and submitted an application mentioning the aforesaid circumstances. The learned J.M.F.C. took cognizance of the said complaint on 31-12-2001 and registered the said complaint as Criminal Case No. 138 of 2001. The cognizance has been taken u/s 161 of Indian Penal Code and also under Sections 145 and 147(e) of the Bombay Police Act. This order dated 31-12-2001 is under challenge in this application.

Mr. Kasat, learned counsel, for the petitioner contended that the Magistrate has no jurisdiction to take cognizance of the offence punishable under Prevention of Corruption Act and he has no power to order investigation u/s 156(3) of the Code of Criminal Procedure in respect of such offence on a private complaint. In support or these submissions he relied on the decision of Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, wherein it has been held that the Special Judge alone is competent to take cognizance of the offence specified in the Act. The Bench was considering Section 8 of Criminal Law Amendment Act, 1952 which is identically worded. In paragraph 18 of the decision Desai, J., who spoke for the Bench has stated that u/s 8(1) the Special Judge shall not take cognizance on commitment of the accused. "It positively conferred power on Special Judge to take cognizance of offence and it negatively removed any concept of commitment." He also relied on the decision of Kerala High Court in State of Kerala v. Navab Rajendran, VI- 1994 (2) Crimes 321.

The learned A.P.P. contended that once the cognizance by the Magistrate for the offence punishable u/s 161 of Indian Penal Code has been taken at the most, the trial can be transferred to the Court of Special Judge for adjudication in accordance with law. He, therefore, contended that there is no merit in this application which is liable to be dismissed.

This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that respondent No. 2 and his driver were facing criminal prosecution bearing Criminal Case No. 773 of 1998 for the offences punishable under the Motor Vehicles Act. It is also not disputed that respondent No. 2 and his driver had chosen to remain absent and, therefore, the learned Magistrate had issued non-bailable warrants in order to secure their presence. It is also not disputed that the petitioner was working as Head Constable at police station Umrakhed and the non-bailable warrants were assigned to him for service. Thereafter, it appears that the petitioner when had gone to respondent No. 2 for execution of the warrants had demanded an amount of Rs. 5,000/- in order to show favour and by saying that they would not be arrested. Respondent No. 2 is said to have paid an amount of Rs. 4,000/- as illegal gratification to the petitioner and thereafter had presented an application of which cognizance was taken by the Magistrate for the offence u/s 161 of Indian Penal Code.

The Kerala High Court in the decision in State of Kerala v. Navab Rajendran - cited supra has held that the Magistrate has no jurisdiction to take cognizance of an offence under Prevention of Corruption Act and he has no power to order investigation u/s 156(3), Criminal Procedure Code in respect of such offence on a private complaint.

The Kerala High Court while laying the aforesaid legal position also considered the Constitutional Bench decision of Apex Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, wherein it has been held that the Special Judge alone is competent to take cognizance of the offence specified in the Act. The Bench was considering Section 8 Criminal Law Amendment Act, 1952 which is identically worded. In paragraph 18 of the decision Desai, J., who spoke for the bench has stated that u/s 8(1) the Special Judge shall not take cognizance on commitment of the accused. "It positively conferred power on Special Judge to take cognizance of offence and it negatively removed any concept of commitment."

The legal position being such, the Kerala High Court on consideration of the observations of the Supreme Court, held in paragraph 6 of the judgment that "a Magistrate has no power to take cognizance of the offences which a Special Judge is specified to try under the Act. This in turn would lead to the conclusion that a Magistrate cannot pass an order u/s 156(3) of the Code in respect of any offence which a Special Judge alone is competent to try, and hence quashed and set aside impugned order passed by the Magistrate.

In the present case, the aforesaid decisions are squarely applicable. The respondent No. 2 instead of submitting the application before the Magistrate ought to have approached either Anti Corruption Bureau or the Special Judge for taking cognizance of the offence punishable under the provisions of Anti Corruption Act, 1947 especially when Sections 161 to 165-A (both inclusive) (Act No. 45 of 1960) have been omitted by introducing Section 31 of Anti Corruption Act, 1988. This being the legal position, the impugned order passed by the learned J.M.F.C. cannot be sustained in law and deserves to be set aside. In the result, the impugned order is hereby quashed and set aside. The application is allowed. The proceedings in Summary Criminal Case No. 773/1998 is hereby quashed and set aside.