JUDGMENT [ENTITY], J.
1. This is an application filed under [SECTION] of the [ACT] (in short the Code). It is directed against the order dated 22.12.2005 passed by Sri [ENTITY], Judicial Magistrate, Ist Class, Patna whereby he has ordered for issuance of summons to the petitioners (wrongly stated in paragraph No. 1 of the present petition that by this order he has taken cognizance of the offences against the petitioners).
2. From the facts of this case it would appear that opposite party No. 2 had filed a complaint petition against the present petitioners on various grounds mentioned therein. It has been stated that on 23.11.2002 opposite party No. 2 fell down while practicing at S.A.I. Kolkata and got the retina of his left eye detached. He was examined at Sankar Netralaya where he was operated upon and he incurred an expenditure more than Rs. 1,00,00/-. Opposite party No. 2 approached the petitioners for the re-imbursement of his claim of Rs. 64,914.50 under the group insurance scheme. However, his claim was not accepted and he was ill treated when he visited the office of the S.A.I. Kolkata by petitioner Nos. 5 to 8. It appears that [CASE NUMBER] was registered and opposite party No. 2 was examined on solemn affirmation. In course of enquiry under [SECTION] of the Code two witnesses were also examined and thereafter the impugned order was passed. The main grievance of opposite party No. 2 is that inspite of the payment of premium of group insurance he was not reimbursed the expenses which he had to incur for his treatment at Sankar Netralaya, Chennai though the doctors at Salt Lake Eye Foundation has recommended for his operation there. The Hon'ble Supreme Court in the case of [PRECEDENT] had held that the courts should exercise their power under [SECTION] of the Code where the allegations made in the complaint petition are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Moreover the petitioners being Government servants they are entitled for protection under [SECTION] of the Code. On these grounds it has been contended that the impugned be quashed.
3. A Supplementary affidavit has been filed on behalf of the petitioners in which also similar grounds have been taken and an additional ground has been stated in it that since the alleged occurrence had taken place at Kolkata the courts at Patna have got no jurisdiction to take cognizance of the offence.
4. A counter affidavit has been filed on behalf of the opposite party No. 2 in which it has been stated that he received a call letter from S.A.I. Training Centre, Kalkata. While going through the training there he sustained injury in his eye for which he had to be operated upon at Sankar Netralaya, Channai. The courts at Patna have got jurisdiction to try this case and the petitioners, simply to harass opposite party No. 2 who is a poor person, wants that the trial should took place outside Patna.
5. The parties have been heard at length at the stage of admission itself in respect to the various points raised in the petition including the in counter affidavit and this petition is disposed of at the stage of admission itself.
6. On behalf of opposite party No. 2 it has been submitted that by the order dated 22.12.2005 the learned Judicial Magistrate has not taken the cognizance of the offence. By this order he has simply directed for issuance of the process against the petitioners since the cognizance of the offence was already taken. In this connection he has drawn my attention to [SECTION] of the Code which deals with the cognizance of the offence by the Magistrate. In particular he has invited my attention to [SECTION] of the Code which runs as follows:
192. Making over of cases to Magistrate .-(1). Any Chief Judicial Magistrate may, after taking cognizance of an offence (emphasis supplied), make over the case for inquiry or trial to any competent Magistrate subordinate to him XXX XXX XXX XXX XXX From this it would appear that when ever a case is made over to a Magistrate for an inquiry or trial by the Chief Judicial Magistrate as per this provision of law the cognizance has already been taken further reference may also be made to [SECTION] which provides for the examination of the complainant on solemn affirmation. [SECTION] of the Code also shows that the Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present. In the present case the complainant has already been examined on oath by the learned Chief Judicial Magistrate after which he transferred the case for enquiry or trial under [SECTION] of the Code. From this also it would appear that the cognizance of the offence has already been taken. I will next refer to [SECTION] of the Code which deals with the postponement of issue of process. It provides that any Magistrate on the receipt of the complaint under [SECTION] of the Code may make an inquiry into the case himself or direct an investigation by a police officer or any other person. I am referring to these provisions of law only to show that the impugned order which has been passed by a Judicial Magistrate was passed under [SECTION] of the Code before which the cognizance of the offences was taken by the learned Chief Judicial Magistrate and it was under this circumstance that by the impugned order only summons were ordered to be issued against the petitioners. Hence statement to the contrary made in paragraph No. 1 of the present petition does not appear to be correct. The fact, however, remains that by this petition the impugned order passed by the learned Judicial Magistrate Ist Class, Patna has been sought to be quashed.
7. In course of the argument made by the parties it has seriously been contended before me that the courts located at Patna have no jurisdiction to pass any order with respect to the complaint petition filed in the case inasmuch as the entire occurrence had taken place in Kolkata and no part of the occurrence had taken place at Patna. In this connection my attention has been drawn to [SECTION] of the Code which deals with the ordinary place of inquiry and trial. It runs as follows:
177. Ordinary place inquiry and trial.-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
8. On the strength of this section it has been submitted that the courts at Patna have got no juridisction in the matter since the entire occurrence had taken place at Kolkata. On this ground also the impugned order has been challenged. On tehalf of the opposite party No. 2, however, my attention has been drawn to [SECTION] of the Code which runs as follows:
181.(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any party of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person (empasis supplied).
9. In this connection my attention has also been drawn to [SECTION] of Law Commission of India which was submitted in the year 1969. In particular my attention has been drawn towards paragraph 15.38 of this report which had recommended certain amendments in [SECTION] of the Code. Persuant to this recommendation [SECTION] was incorporated in the Code which was reinacted in [ACT]).
10. From perusal of the grounds on the basis of which amendments were recommended in [SECTION] it appears that the law Commission felt that in certain cases the person concerned was required to file the case in the distant court and this put him to great disadvantage. Hence this was incorporated in the Code giving jurisdiction to the courts within whose local limits the amount was required to be returned back. In the present case it has been alleged by opposite party No. 2 that he had deposited the premium for the group insurance and was entitled to be reimbursed the expenses made by him for the treatment of his eye. In other words as per his case the payment was to be made for re-imbursed or accounted to him at Patna and not at Kolkata. On this ground as per the aforesaid provision of law he has contended that the courts at Patna will also have jurisdiction to try this case and there is no lack of jurisdiction of other part so far as his case is concerned.
11. In the written argument submitted on behalf of the petitioner in paragraph 12 a reference has been made to the case . It has been repeatedly pointed out by this Court that this is not the proper way to refer to a particular decision of any Court. The proper way would be to give the names of the parties before citation of the reference. In paragraph 12 the names of the parties have not been given. However, after referring to it appears that the names of the parties were as follows: [PRECEDENT]. However, this decision appears to be inconflict with the decision in the case of [PRECEDENT] which has been followed in the subsequent decision of the Hon'ble Supreme Court. However, since after two decisions [SECTION] has been re-drafted in [ACT]. This need not be discussed in detail. However, while in the case of [PRECEDENT] (supra) the word "ordinarily" mentioned in [SECTION] has been defined to me "except where provided otherwise by the Code". In the later decision in the case of [PRECEDENT] (supra) it has been held that exceptions implied by the word "ordinarily" need not be limited to those specially provided for by the law.
12. In paragraph 29 of the present petition a reference has been made to the case of [PRECEDENT] (supra). On the strength of this decision it has been tried to lay down that the power under [SECTION] of the Code should be exercised if the complaint petition contains absurd and inherent improbable materials. In this connection a reference may be made to the different cases mentioned in paragraph 102 of the judgment in the case of [PRECEDENT] (supra). In it categories of such cases have been given where the power of to quash the proceeding should be exercised though it has been caution(SIC) that these categories are only illustrative and not exhaustive.
Category No. 7 runs as follows:
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. The petitioners have submitted that since his case falls under this category the prosecution should be quashed. On the perusal of the complaint petition and impugned order passed on the basis of the examination of two witnesses it clear that the ingredients of this category will not apply to the present case and, therefore, I do not find any merit in this submission.
14. Alternatively it has been argued that even if the Magistrate taking cognizance of the offence at Patna had no territorial jurisdiction to try the offence still the order taking cognizance of the offence would not be wrong as has been held by the Hon'ble Supreme Court in the case of [PRECEDENT]. . In this decision it has been held that the Magistrate taking cognizance of the offence need not have territorial jurisdiction to try the offence. It has further been held that any Magistrate of Ist Class has power to take cognizance of the offence, whether committed within his territorial jurisdiction or not. His power to take cognizance is not impaired by territorial restrictions. In this connection a reference has also been made to [SECTION] of the Code which provides that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other locad area, unless it appears that such error has in fact occasioned a failure of justice. On this ground also it has been submitted on behalf of the opposite party No. 2 that the impugned order can not be challenged even if the courts at Patna have no territorial jurisdiction in the matter.
15. My attention has also been drawn to the case of [PRECEDENT] in which a sepoy of Bihar Military Police while on duty in Kashmir had deserted his post. It was held that Bihar Counts will have jurisdiction for his trial and the actual place where he deserted his post is immaterial.
16. My attention has also been drawn to the case of [PRECEDENT]. This is a decision of Orissa High Court by Hon'ble Mr. Justice [ENTITY] (as he then was). It has been held in this decision that in a case of offence of criminal breach of trust the courts at any one of the places mentioned in [SECTION] of the Code will have jurisdiction to try such offence. A detailed discussion has been made in this judgment by [ENTITY], J. (presently Hon'ble Justice of Hon'ble Supreme Court) and it has clearly been stated that the requirement prescribed a in [SECTION] are disjunctive and the court at any of the places mentioned in the said condition requirement would have jurisdiction to try the offence.
16. In a recent decision in the case of [PRECEDENT] this Court had relied on the case of [PRECEDENT] (supra) and has held that even if the Magistrate who took cognizance of the offence had no territorial jurisdiction in the matter and the same could not be quashed.
17. From the detailed discussions made above it becomes clear to me that the impugned order does not suffer from any legal defeat. It also appears to me that there is no merit in this application. It is, accordingly, dismissed. The learned court below is directed to proceed with the trial of the case.