K.P Mohapatra, J.:— This revision is directed against the order passed by the learned Chief Judicial Magistrate, Berhampur, on 6-9-1984 setting aside the order of cognizance of an offence under section 406 of the Indian Penal Code (‘I.P.C’ for short) dated 14-12-1983 and discharging the opposite parties on dismissal of the complaint petition.
2. A few facts have to be narrated in order to appreciate the contentions raised in this case. The petitioner, an officer of the Food Corporation of India at Titilagarh, lodged F.I.R at the Vigilance Police Station, Berhampur, on 3-3-1974 stating therein that the opposite parties belonging to Kalahandi district were partners of a firm named and styled as M/s. J.S.B.B Mund with headquarters at The lokomunda and carried on business in paddy and rice and were rice mill owners. They entered into an agreement with the Food Corporation of India to purchase paddy, mill the same and supply rice for the kharif year 1971-72. According to the terms of the agreement, the Food Corporation of India advanced money from time to time to them aggregating a sum of Rs. 4,18,000/- for purchase of 9735 quintals of paddy. The opposite parties, however supplied rice of the value of Rs. 2,52,628.96 which was adjusted towards the advance. The balance amount of Rs. 1,94,281.67 was misappropriated by them. Investigation commenced, during course of which it was found that actually the opposite parties acted as agents of the Food Corporation of India during the kharif year 1971-72 and entered into an agreement to purchase paddy, mill the same and supply rice. They took an advance of Rs. 4,18,000/- and purchased 9735 quintals of paddy. They delivered only 2503.54 quintals of rice to the Food Corporation of India valued at Rs. 2,52,628.96 and misappropriated the stock of 3025.18 quintals of rice. Thus out of the total advance of Rs. 4,18,000/-, there was adjustment of Rs. 2,52,628.96 and the balance amount of Rs. 1,94,281.67 was said to have been misappropriated by them. It further came to light during investigation that the opposite parties took interest bearing advance and so a view was taken that the advance was in the shape of loan, for which promissory notes ware executed. Therefore, the opposite parties were the owners of the cash from out of which they purchased paddy. As they purchased paddy from out of their own cash, there was no prima facie case for an offence under section 409, I.P.C A final report was accordingly submitted in the court on 5-8-1981 which was accepted on 26-8-1981.
3. On 11-9-1981 the petitioner filed a protest petition. On 14-12-1983 the learned Chief Judicial Magistrate passed the following order:—
“…Perused the papers and the protest petition. Cognizance taken u/s. 406, I.P.C Summon the accused persons fixing 24-1-1984.”
4. On 24-8-1984 the opposite parties filed a petition virtually challenging the order of cognizance stating therein that the protest petition was in the nature of a complaint petition under section 406, I.P.C filed before the Chief Judicial Magistrate who had no territorial jurisdiction to entertain it and also for taking cognizance of the offence after acceptance of the final report, filing of the protest petition was not in continuation of the same proceeding and so the order of cognizance was without jurisdiction, according to law; and the protest petition having been treated as a complaint petition filed long after three years of the alleged year of occurrence was barred by limitation under section 468 of the Code of Criminal Procedure (‘Code’ for short).
5. Learned Chief Judicial Magistrate after hearing both parties came to hold that the protest petition was in the nature of a complaint petition under section 190(1)(a) of the Code; and after acceptance of the final report in the vigilance case, the Court in its extended territorial jurisdiction in view of the Orissa High Court's Notification No. 233-A dated 30-6-1975 could not take cognizance on the basis of the protest petition. Accordingly, he reviewed the order of cognizance passed on 14-12-1983, set it aside, dismissed the protest petition and discharged the opposite parties.
6. Mr. Y.S.N Murty, learned counsel appearing for the petitioner, raised the following contentions:—
(1) Even though in the vigilance case, after investigation, the Investigating Officer submitted a final report which was accepted by the court, on filing of a protest petition by the informant, the same proceeding continues, although technically speaking the protest petition may take the form a complaint petition. In that view of the matter, the learned Chief Judicial Magistrate had legal and territorial jurisdiction;
(2) The learned Chief Judicial Magistrate had no power of review of his own order under the Code so as to set aside the order of cognizance already taken. He also lacked inherent powers under the Code so as to revoke his own order, even though it might have been wrong or illegally passed; and
(3) If the learned Chief Judicial Magistrate felt that an order had illegally been passed and he had no jurisdiction to continue and complete the proceeding, he could draw the attention of the Sessions Judge of the High Court so as to exercise suo motu power of revision, call for the records and set aside the order.
7. Mr. S.K Mund, learned counsel appearing for the opposite parties, not only controverted the points raised and referred to above, but on the other hand urged that the complaint petition was barred by limitation under section 468 of the Code.
8. While narrating facts it has been stated that the final report was submitted on 5-8-1981 recording. “The case is mistake of law u/s. 409, I.P.C” It will appear from the records that before acceptance of the final report, notice to the petitioner was not given as envisaged in the case of Bhagwant Singh v. Commissioner Of Police, Delhi . 1985 2 SCC 537. Bhagwati, J. (as he then was) spoke for the Court thus:—
“…There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S. 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is “forwarded under subsec. (2)(i) of S. 173 decides not to take cognizance of the offence and to drop the proceeding or take the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First information Report, the Magistrate must have notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”
9. If in accordance with this principle a notice had been given by the learned Chief Judicial Magistrate, Berhampur, to the petitioner, the latter could have immediately approached the court so as to file a protest petition and may be after hearing both parties and considering the materials available in the police case diary and the protest petition the court could have taken cognizance of an offence under section 409, I.P.C and issued process against the opposite parties. As this salutary course was not adopted, the petitioner had to file the protest petition later which the learned Chief Judicial Magistrate, Berhampur, accepted as a fresh complaint petition under section 406, I.P.C so as to hold that he had no jurisdiction to proceed with the complaint case but, on the other hand, the learned Sub-Divisional Judicial Magistrate, either of Titilagarh or of Dharamgath, had jurisdiction to entertain and proceed with the same. In taking such a view he was influenced by a decision of this Court reported in Debi Hari Choudhury v. Rama Chandra Choudhury . 32 1966 C.L.T 423.. In that case the complainant filed a complaint petition in the court of the learned Magistrate, First Class, Titilagarh alleging that one of the accused who was a proprietor of a hotel at Visakhapatnam in Andhra Pradesh had kidnapped his wife and children from his lawful guardianship during his absence. On the date the complaint was filed the learned Magistrate took cognizance of offences under sections 363; 498 and 494, I.P.C against the accused. Subsequently on an application being filed, the learned Magistrate held that he had inherent powers to review his order and directed discharge of one of the accused namely, the wife of the complainant on the ground that there was no prima facie case under section 494, I.P.C against her. The later order of discharge was set aside by the learned Sessions Judge, Bolangir against whose order the criminal revision was filed. G.K Misra, J. (as he then was) summed up she legal position thus:—
“…(i) If the complaint petition does not disclose the existence of territorial jurisdiction, the Magistrate has got power to dismiss it. The same is the position relating to the examination of the complainant on oath under section 200, Criminal Procedure Code.
(ii) If either in the complaint petition or in the statement on oath, there are statements of fact ousting the jurisdiction, the Magistrate can drop the proceeding even after issue of process without giving further opportunity for adducing evidence.
(iii) If, however, the complaint petition and the statement on oath??? are silent as to facts relating to the existence of territorial jurisdiction, the Magistrate cannot drop the proceeding after issue of process without giving further opportunity to the parties to lead evidence to establish existence or otherwise of territorial jurisdiction.”
10. It is pertinent to note that even in this decision it was held that further opportunity should be given in certain cases to the parties to lead evidence to establish existence or otherwise of territorial jurisdiction. The learned Chief Judicial Magistrate Berhampur while passing the impugned order did not notice the above important finding and did not give opportunity to the petitioner to lead further evidence to establish existence of territorial jurisdiction of the court to take cognizance of offences investigated by the Vigilance Police. Had such opportunity been given before passing the impugned order, the petitioner could have adduced evidence in the light of the investigation conducted by the Vigilance Police to show that the learned Chief Judicial Magistrate, Berhampur, by virtue of notification No. 238-A dated 30-6-1975 which is extracted below had jurisdiction to entertain and take cognisance of the offence.
“NOTIFICATION
The 30th June. 1975
No. 238-A: In exercise of the powers conferred by sub-section (3) of section 11 of the Code of Criminal Procedure, 1973 (Act II of 1974), the High Court of Orissa do hereby confer upon the Chief Judicial Magistrate in the district of Ganjam, the powers of & Judicial Magistrate of the First Class under the said Code in respect of cases instituted and investigated by the State Vigilance Branch in the districts of Kalahandi, Koraput and Phrulbani.”
11. Apart from the above, Mr. Murty placed reliance on an identical case in Balakrishna Das v. Bijaya Ratna Sen Sharma . Crl. Misc. Case No. 545/1984-Decided on 13-12-1985., decided on 13-12-1985 by G.B Patnaik, J. In this case F.I.R was lodged in the Kesinga Police Station by the District Manager, Food Corporation of India. It was registered as P.S Case No. 19(2) of 1974 under section 409, I.P.C and later G.R Case No. 107 of 1974 was instituted in the court of the learned Sub-Divisional Judicial Magistrate, Bhawanipatna. But as the investigation bad been taken up by the Vigilance Police the case records were sent to the learned Chief Judicial Magistrate, Berhampur in whose court the case was renumbered as G.R Case No. 7 of 1975. A final report was submitted on 6-8-1981 which was accepted by the learned Chief Judicial Magistrate, Berhampur on 26-8-1981 holding that the case was a mistake of law. Thereafter, the informant, the District Manager of Food Corporation of India, filed a protest petition on 5-11-1981 before the learned Chief Judicial Magistrate, Berhampur, alleging that the petitioner had committed an offence under section 406, I.P.C and prayed that the final report submitted by the investigating agency may not be accepted and cognizance of the offence be taken. By order dated 7-9-1982 the learned Chief Judicial Magistrate, Berhampur, took cognizance of the offence under section 406 I.P.C which was challenged in this Court under section 482 of the Code. One of the question which arose for consideration was whether:
“The protest petition filed by the informant has been treated as a complaint case and for such a case, the Sub-Divisional Judicial Magistrate, Bhawanipatna, will have the jurisdiction to take cognizance and not the Chief Judicial Magistrate, Ganjam, since the cognizance is not being taken in respect of a case investigated by the State Vigilance Department in accordance with the notification No. 238 dated the 30th of June, 1975 issued by the High Court of Orissa;”
12. This Court answered the question as follows:—
“…The present case arises on the basis of a protest petition which has been filed after coming to know of the filing of final form by the investigating agency. In the eye of law, the petition must be taken to be one filed by one informant in exercise of his right of getting an opportunity of being heard in accordance with the provisions of Section 173(2)(ii) of the Code of Criminal Procedure as has been held by the Supreme Court in the case of Bhagwant Singh v. Commissioner Of Police, Delhi, (1985) 2 SCC 537 : A.I.R 1985 S.C 1285. Therefore, the petition must be held to be in respect of case instituted and investigated by the State Vigilance Branch and consequently the Chief Judicial Magistrate, Ganjam exercising the powers of First Class Magistrate in respect of districts of Kalahandi, Koraputand, Phulbani will have the jurisdiction under notification No. 238-A referred to earlier. I, therefore, reject the submission of Mr. R. Mohanty, the learned counsel for the petitioner and accept the submission of Mr. Murty, the learned counsel for the opposite party.”
13. Mahabir Prasad Agarwala v. The State . A.I.R 1958 Orissa 11., was cited to show that a protest petition is a complaint. In this case Narasimbam, C.J referred to a few decisions of the Patna and Calcutta High Courts and took the following view:—
“In any case, it is now settled by the unanimous decision of all High Courts that such a protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XVI of the Criminal Procedure Code… The complainant should be examined on S.A and either process should issue under section 204, Cr. P.C placing the accused on trial or for adequate reasons a judicial enquiry may be ordered under section 202 and if sufficient ground is not made out the complaint may be dismissed under section 203, Cr. P.C”
14. It was further held that omission to examine the complainant on solemn affirmation under section 200 before sending the complaint for enquiry under section 202 of the Code is a mere irregularity which does not in any way prejudice the accused. It is not an illegality. An identical view was expressed in Anadi Naik v. State . 1983 C.L.R 18.. Such a view was also expressed in Balakrishna Das v. Bijaya Ratna Sen Sharma, where it was held that the District Manager, Food Corporation of India, being a public servant coming within the ambit of proviso (a) to section 200 of the Code, it was not necessary to record his initial statement by examining on solemn affirmation, because he bad himself filed the protest petition in writing. Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under section 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted, and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police. This being the position, the Chief Judicial Magistrate, Berhampur, exercising the powers of a Judicial Magistrate, First Class, in respect of the districts of Kalahandi, Koraput, Phulbani and Ganjam with regard to cases investigated by the State Vigilance Police had jurisdiction to take cognizance of the offence.
15. The case may be viewed otherwise also. After investigation, the vigilance police in a given case submits final report along with the case diary containing all the records of investigation. The informant disputes the final report and files a protest petition. It is open to the Judicial Magistrate to consider the materials available in the case diary, as well as protest petition either for the purpose of taking cognizance of the offence or otherwise. If such a procedure is permissible, it does not stand to reason that the protest petition when filed though of the nature of a complaint petition shall stand completely dissociated from the record of investigation. On the other hand, both have to be considered in harmony so that as a first step to find out truth the court will enable itself to take cognizance of the offence.
16. Looking the case in hand from either angle of vision, I find much force in the contention of Mr. Murty and hold that the learned Chief Judicial Magistrate had territorial jurisdiction to take cognizance of the offence by order dated 14-12-1983. The first question is, therefore, answered in favour of the petitioner.
17. The second and third questions posed by Mr. Murty are comparatively simple. In Ramesh Samal v. Chabi Mandal . 1987 1 O.L.R 1., a Bench of this Court (to which I was a party) referred to Supreme Court decisions and an earlier decision of this Court and held that an order of taking cognizance is not an interlocutory order but one which decides a serious question as to the right of the person to be put on trial. Against such an order, a revision according to law is competent. On the basis of the principle laid down in this decision, a view can be taken that an order of taking cognizance is in the nature of a final order. That being so, under section 362 of the Code, a Judicial Magistrate cannot alter or review the same except to correct a clerical or arithmetical error. In other words, after passing of the order of taking cognizance of an offence, so far as this particular stage in a criminal proceeding is concerned, the court becomes functus officio and axcept to the limited extent of correcting a clerical or arithmetical error, the order cannot be reviewed in any manner so as to be set at naught. Further, a Judicial Magistrate is not vested with inherent powers under the Code to review his own order. Even a High Court though possessed of inherent powers under section 482 of the Code cannot review its judgment as was held in State of Orissa v. Ram Chandra Agarwala etc . 1979 2 SCC 305. In Chhotey Lal v. State . A.I.R 1951 All. 714., a learned Judge held that a Magistrate has no jurisdiction to review his own previous order under section 369 of the old Code.
18. In view of the above discussion. I uphold the contention of Mr. Murty and hold that the learned Chief Judicial Magistrate, Berhampur, had no jurisdiction to review his own order passed earlier and practically setting aside the same, thereby assuming the role of a court of revision. If he had any doubt about the correctness of the earlier order, it was open to him to draw the attention of the Court of Session or the High Court so as to initiate a suo moiu criminal revision under sections 399 and 401 of the Code. As would appear from the decision in Bhupendra Nath v. Union of India . A.I.R 1959 H.P 29., such a course of action was permissible. The learned. Chief Judicial Magistrate, Berhampur, in my view acted, illegally and in wrong exercise of his jurisdiction by setting aside his own order either on review or in supposed exercise of inherent powers. The second and third questions are thus answered in favour of the petitioner.
19. With regard to limitation, the opposite parties may move the appropriate court if so advised to canvass the point. This point does not arise for consideration on the move of the petitioner who has not challenged limitation as a bat to the order of cognizance. For the reasons stated above, the criminal revision is allowed and the impugned order of the learned Chief Judicial Magistrate, Berhampur, is set aside. The case is remitted to his court so as to take further proceeding according to law. The lower court records may be despatched forthwith.
20. Revision allowed.