A.P. Bhangale, J.@mdashHeard Mr. H.R. Dhumale, learned Counsel for the applicant and Mr. R.B. Gaikwad, learned Counsel for Respondent sole.
2. Rule, returnable forthwith. With the consent of respective learned Counsel, the matter is taken up for final disposal.
3. By way of this application filed u/s 482 of the Criminal Procedure Code, 1973 (in short "the Code"), the applicant prays for quashing and setting aside the order dated 26.10.2010 passed by learned Judicial Magistrate, First Class, Court No. 6, Nagpur in Criminal Complaint No. 3193/2010, in which it is observed as under:
It seems that the complainant has made out a prima facie case for the offence punishable under Sections 199, 200, 420 of the Indian Penal Code. Thus, issue bailable warrant of Rs. 2,000/ against the accused on paying the process fees by the complainant within stipulated time. Warrant returnable on 30.11.2010. Matter to be registered as Regular Criminal Case. Previous Number of Criminal Misc. Application be deleted.
4. On behalf of the applicant, Mr H R. Dhumale, learned Counsel submitted that the applicant was appointed on the post of Dental Surgeon in Health Unit at Saoner on adhoc basis for 29 days with effect from 9.4.2001. The applicant, however, continued to work on the said post till the year 2003. He was again appointed with effect from 24.11.2008 and has been working as Dental Surgeon rendering an yeoman service. According to the applicant, prior to his initial appointment, the Respondent was working on the post of Dental Surgeon but his services were discontinued by the competent authority some time in the year 1999. His termination was challenged by Respondent before the Maharashtra Administrative Tribunal, Nagpur by means of Original Application No. 558/2000. The said application was rejected on 24.12.2001. Thereafter, the Respondent chose to lodge complaint (ULP) No. 468/2010 before the Industrial Court, Nagpur with a prayer to set aside the applicant''s order of appointment as Dental Surgeon and Respondent also prayed for his reinstatement on the said post. The Complaint is pending adjudication before the Industrial Court, Nagpur. The Respondent decided to file another Criminal Complaint bearing Case No. 3193/2010 on 11.8.2010 alleging that the applicant has obtained the post of Dental Surgeon by producing a certificate dated 20.8.2011 issued by the Dean of Government Dental College & Hospital, Nagpur, in which it is mentioned that applicant is a bonded candidate, thus, alleging that the applicant committed offences punishable under Sections 199, 200 and 420 IPC. According to the applicant, learned JMFC has in a mechanical and pedantic manner, issued the bailable warrant without adverting to the basic grievance of the Respondent regarding his termination which is in fact, the subject matter of pending W.P. No. 1250/2002 in this Court. Under these circumstances when the dispute between the applicant and Respondent was subjudice in W.P. No. 1250/2002 and accusations levelled against the applicant in respect of the letter purportedly produced along with the submissions in the pending Writ Petition No. 1250/2002, it is argued that the learned JMFC ought not to have taken cognizance of offences allegedly punishable under Sections 199, 200 of IPC. It is further submitted that the allegations made in the complaint at their face value could not make out a prima facie case enough to take cognizance and issue process. It is submitted that the proceedings are also pending before the MAT, Nagpur in O.A. No. 155/2011 in which the Tribunal passed an interim order to the effect that applicant shall not be replaced by another adhoc employee, bonded or otherwise, until further orders and the order is still existing. Under these circumstances, it is contended that the Respondent despite pendency of dispute before a plethora of fora, viz. High Court, MAT, so also the Industrial Court, Nagpur, chose to lodge the complaint alleging offences punishable under Sections 199, 200 and 420 of IPC with prayer that applicant be prosecuted for offence punishable under Sections 199, 200, 420 IPC and to convict him accordingly.
5. Learned Advocate for the Respondent who stridently opposed the application, submitted that the complaint also related to accusations u/s 420 IPC and was not limited to accusations under Sections 199 and 200 IPC. However, it is not disputed that multiple proceedings are pending in the form of complaint before the Industrial Court, Nagpur; Writ Petition before this Court and O.A. at MAT at Nagpur, apart from criminal complaint. The gravamen of the complaint appears that the applicant had filed a certificate purportedly issued from the Dean, Government Dental College & Hospital, Nagpur in which it was mentioned that the applicant is a bonded candidate along with submissions filed by the applicant in Writ Petition No. 1250/2002 pending in this Court.
6. Perusal of the order impugned in this application and the submissions advanced before me and copies of document sought to be relied upon considering the offences punishable under Sections 199 and 200 relating to document produced along with the submissions in pending writ petition before this Court, prima facie, there appears to be a bar for any Court to take cognizance of offences punishable under Sections 199 and 200 IPC, particularly when it is alleged to have been committed in or in relations to writ petition pending before this Court. The learned JMFC appears to have totally overlooked the prohibition contained in Section 195: Clause (b) (1) of the Code to the effect that no court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, 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 any Court...except on the complaint in writing of that Court or by any such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure in respect of cases mentioned in Section 195(1)(b) of the Code which is required to be adopted when accusations are in respect of the offences mentioned in Section 195(1)(b) of the Code. Preliminary enquiry is contemplated for to record a finding before a complaint in writing may be sent to the Magistrate of the First Class having jurisdiction, particularly when the proceedings in the nature of Writ Petition is pending before the High Court and accusations relate to document filed in such proceedings. Competent Officer of the High Court as may be appointed is required to sign the complaint and follow the procedure as contemplated u/s 340 of the Code. Direct cognizance by the Magistrate in respect of such accusation is barred in view of the provision in Section 195(1) of the Code. For aforesaid reasons, when disputes are pending in various Courts in this case, cognizance taken by the learned JMFC was neither proper nor legal.
7. In sequel, therefore, the impugned order dated 26.10.2010 passed by the learned JMFC Court No. 6, Nagpur is set aside in respect of cognizance of offences punishable under Sections 199, 200 IPC. Regarding the accusations made u/s 420 IPC, it is open for the complainant if so advised, to lodge a separate complaint. The application is allowed accordingly.
