1. This is an application u/s 482 of the Code of Criminal Procedure for quashing of complaint case Being No. CS- 0023522 of 2015 u/s 181 / 193 / 199 / 200 / 209 of IPC and all orders passed therein including the order dated July 8th ,2015 passed by the Learned Chief Metropolitan Magistrate, Calcutta, thereby taking cognizance and order dated April 5th 2017 passed by the Learned Metropolitan Magistrate 6th Court Calcutta thereby issuing process against the present petitioner.

2. The brief fact of the case is that the present opposite party lodged a petition of complaint before the Learned Chief metropolitan Magistrate Calcutta against the present Petitioner alleging offence punishable u/s 181 / 193 / 199 / 200 / 209 of IPC committed by the present petitioner. On the basis of such complaint the Learned Magistrate has taken the cognizance and sent the case to the Learned Metropolitan Magistrate 6th Court Calcutta. The Complainant was examined u/s 200 Cr.P.C. on SA and Learned Magistrate directed OC Hare Street, PS to conduct an investigation u/s 202 Cr.P.C.. After the report of police was filed, the Learned Magistrate was pleased to issue process against the present petitioner u/s 181/193/199/200/209 of IPC .

3. Being aggrieved by the said proceeding, the instant criminal revision has preferred for quashing.

4. In a nutshell, the brief allegation of the present OP against the present petitioner is that the parties are the 3 contested litigants of different proceeding before the Municipal Building Tribunal Calcutta as well as before the Calcutta, High Court. The present petitioner has represented himself as constituted attorney of M/s. Binani Metals Limited in various proceeding before Hon'ble High Court in respect of civil revision and writ petition also before the Municipal Building Tribunal. It is specific allegation against the present petitioner that two power of attorneys in the name of the present petitioner was filed before the tribunal; the said two documents indicated that the present petitioner was appointed by Binani Metal Private Limited as constituted attorney in the capacity of director of Dempo Marketing Limited and not in his individual capacity.

5. It is a positive fact of the complainant that the said Dempo Markentile Limited went into voluntary liquidation on date 06.05.1996. Accordingly, on the aforesaid date, the office directorship of petitioner M.K. Jalan, in Dempo Markentile Limited stood suspended and he was no longer authorise to take any action or exercise his capacity as Director of Dempo Markentile Limited.

6. Automatically, from the aforesaid date the petitioner MK. Jalan, also lost his powers to help Binani Metals Limited as constituted attorney, since the power granted by Binani Metals Limited in favour of the petitioner M.K. Jalan was in capacity of Director Dempo Markentile Limited and not in his individual capacity. It is the further allegation of the complaint that the petitioner MK Jalan, representing himself as 4 constituted attorney, filed an affidavit in the appeal proceeding being B.P. appeal No. 22 of 2006. It was actually filed by him in his capacity of purported constituted attorney of M/s. Binani Metals Limited and also in various proceeding before the Hon'ble High Court in respect of civil revision and writ petition, though, the attorneyship of M.K. Jalan (present Petitioner) has become void owing to the provision of Section 491 of the Companies Act 1956.

7. It is further fact of the complaint that the complaint has preferred of proceeding u/s 340 of Cr.P.C. against the present petitioner before the Learned Tribunal alleging the said accused had made false statement of oath regarding his status of constituted attorney when such status had ceased to exist. It is further allegation that the present petitioner M.K. Jalan has filed similar applications before the Hon'ble High Court both in civil revisional jurisdiction and constitutional writ jurisdiction where similarly false and forgerious statements were made by the said M.K. Jalan. However, upon withdrawal of the writ petition Hon'ble Court has made an observation- "kept open to be agitated in any other proceeding, in accordance with law". Though allegation against the present petitioner was framed in the petition of complaint that the accused MK Jalan acted mala fide and with fraudulent intention along with full knowledge of the fact that he was making a false statement, wilfully and deliberately and made such false statements in order to obtain favourable orders from Hon'ble High Court while proceedings 5 were pending before the Hon'ble High Court and in the process also withheld the joint measurement programme to ascertain what is actual area of land and confirmed sanctioned a plaint was obtained by M/s. Binani Metals Limited by fraudulent misrepresentation of fact and thus helped abatement crime of fraudulent misrepresentation of area of land of M/s. Binani Metals with the nexus of constant functionaries of KMC Building Department.

8. So, on plain perusal of a petition of complaint it appears that the allegation of the complaint against the present petitioner before the Learned magistrate is offence of perjury.

9. Petitioner filed this criminal revision for quashing mainly on two grounds;

Firstly, the order of taking cognizance by the Magistrate on the basis of the petition of complaint is a complete bar u/s 195 (1) (a) (i) and Section 195 (1) (b) (i) of the Cr.P.C.

Secondly- present proceeding is bar under the principle of res judicata, as the present opposite party earlier initiated an application U/s 340 Cr.P.C . before the Municipal Building Tribunal and the order of such Learned Municipal Building Tribunal has attained finality on 7th December, 2011.

10. During the argument several issues have been raised by the parties and the legality of power of attorney standing in the name of the present petitioner and its effect thereof has also been agitated. However it appears to me that only point is required to decide by this court, as to whether, the instant 6 criminal proceeding is liable to be quashed by virtue of bar under the provision u/s 195 of the Code of Criminal Procedure.

11. Learned Advocate for the petitioner Mr. Abhrajit Mitra submits as follows:

b) To the extent the offences are punishable under Sections 193 , 199 , 200 and 209 of the Indian Penal Code, cognizance thereof cannot be taken "except on the complaint in writing by that Court", in this case, the High Court, in view of the bar under Section 195(1)(b)(i) , of the code of Criminal Procedure.

c) On the other hand paragraph 20 to 24 [ pages 35 to 38] of the impugned complaint are allegedly perjurious statements made by the petitioner on oath before the Learned Municipal Building Tribunal [hereinafter referred to as "Learned MBT"] constituted under Section 415 of the Kolkata municipal Corporation Act, 1980.

d) It is an undisputed position that the Learned Municipal Building Tribunal (MBT) is constituted of "Public servants" within the meaning of Section 195(1) (a) (i) of the Code of Criminal procedure. The term public servants is different under Section 21 (12th para Indian Penal Code . The Chairman and other members of the Municipal Building Tribunal members being in the service and pay of the 'State government/Kolkata Municipal Corporation [Re: Section 415(3), (4) and 5 of the Kolkata Municipal Corporation Act, 1980 ] are public servants. 7

e) To the extent the offences alleged in the complaint are punishable under Section 181 of the Indian Penal Code [paras 20 to 24 of the impugned petition of complaint, relevant pages being 35 to 38], cognizance thereof cannot be taken "except on the complaint in writing of the public servant/servants"

Thus, the rejection of the Section 340 Cr.P.C. petition by the Learned MBT by the said order dated December 7, 2011 had attained finality.

h) The order of December 7, 2011 since unchallenged is binding on both sides and the opposite party is stopped from arguing before the court that the Learned MBT had no jurisdiction to entertain the Section 340 application.

i) First, the Opposite party having filed the Section 340 petition before the Learned MBT and contesting the case till the very end cannot now just because the order has gone against him, turn around and contend that the order should be ignored having been passed without jurisdiction. Secondly, even an order without jurisdiction or an order per in curium inter se parties is binding between them. Learned Advocate for petitioner cited the following judgment of Supreme Court.

( i) Mohammad Ali Vs State of West Bengal & Ors. 2012 (3) CHN 110/2012 SCC Online Cal 2684 paras 17 to 22;

(ii) S. Nagaraj (DEAD) by LRS. And Others Vs. B.R. Vasudeva Murthy & Ors. 2010 (3) SCC 353, para 60.

12. Refuting contentions of the Learned Advocate for the petitioner, Learned Advocate Mr. Ayan Bhattacharya, appearing for the respondent argued as follows:

It is therefore, evident that a tribunal is not a court in the context of Indian Law, Furthermore, a tribunal can attract the embargo under Section 195(1) of the Cr P C in case the same is declared to be a court for the purpose of Section 195 of the Cr P C by the constituting Act. Unless a tribunal is declared to be so by the Act by virtue of which it was created, the same cannot attract the provision under Section 195 of the Cr P C. For example, by virtue of Section 10 13(5) of the Protection of Human Rights Act, 1993, the Human Rights Commission is a court with the meaning of Section 195 of the Cr P C. Similarly, the National Green Tribunal is also a court by virtue of Section 19(5) of the National Green Tribunal Act, 2010. A tribunal constituted under the provisions of the Maintenance and Welfare of Senior Citizens Act, 2007 is also a court by virtue of Section 8(2) thereof. No such declaration is found in case of the tribunal constituted under the KMC Act .

In interpreting the aforesaid terminology, it cannot be lost sight of that it is a settled position of law that Legislature is deemed not to waste its words. In other words, not to say anything in vein. It is not a sound principle of a construction to brush aside words in a stature as supererogatory. (Vide Quebec Railway, Light, Hear and Power Company Limited v. Vandry & Ors., AIR 1920 PC 181 [at page 187]) In this connection, reliance may be placed in Iqbal Singh Narang & Ors. vs. Veeran Narang reported in (2012) 2 SCC 60 [Para 1 to 4, 6 and 9 to 14] wherein the Hon'ble Supreme Court of India had declined to quash a proceeding at the behest of a complaint who had initially approached before the learned Rent controller with a complaint Under Sections 193 , 420 , 425 of the IPC and being unsuccessful therein filed a complaint before the jurisdictional Magistrate under Sections 193 , 420 , 120B of the IPC. It was also held therein that a Rent Controller was not a court and therefore dismissal of similar application by the learned Rent Controller would not preclude a party to file a substantive complaint under Section 200 of the Cr.P.C before the concerned criminal court.

The Supreme Court of India in Keshab Narayan Banerjee & Ors. Vs. State of Bihar reported in (200) 1 SCC 607 [Para 1, 3 7] has also held in similar tune wherein the difference between court and a tribunal was succinctly laid down by the Hon'ble Supreme Court of India.

In Gopalkrishna Iyer Vs. Ramchandra Iyer , 1980 SCC OnLine Ker 171[ para 6 to 9], the Hon'ble Kerala High Court had held that a land tribunal constituted under the Land Act at Kerala is not a court within the meaning of Section 195 of the Cr.P.C. Therefore, a substantive complaint is maintainable. Issue of the order dated December 07, 2011 passed by the learned Tribunal operating as res judicata.

The argument of res judicata is misconceived one as it is trite law that the principles res judicata and/or constructive re judicata do not apply in respect of a criminal proceeding unlike a civil proceeding. Therefore, the attempt of the petitioner implanting the provision under Section 11 of the Code of Civil Procedure, 1908 in 11 connection with proceeding which is governed by the Cr.P.C is not tenable.( vide Devendra & Ors. v. State of UP & Anr. , (2009) 7 SCC 495[para25]).

Issue of the respondent stopped from filling complaint under Section 340 of the Cr.P.C before a court of law in view of the Order dated December 07,2011.

The reliance on Mohammad Ali v. WB , reported in (2012) 3 CHN 110 by the petitioner is a misplaced one as in the present case it was nowhere held by the learned Tribunal that the offences as contended by the respondent were not disclosed. The application under Section 340 of the Cr.P.C. filed by the respondent was not entertained by the learned Tribunal as the said learned Tribunal was not a court within the meaning of Section 195(3) of the Cr.P.C. in view of its incapacity, the said application was not entertained by the learned Tribunal which would be evident from the Order itself as extracted hereinabove.

Apart from that the Hon'ble Supreme Court of India in Municipal Corporation of Greater Mumbai v. Pankaj Arora (Secretary) & Ors. reported in(2018) 3 SCC 699 [para 16,17,19] has succinctly laid down the law to the effect that the observation of a court/authority without any jurisdiction is inconsequential and do not operate as estoppels. In view of the law laid down in Municipal Corporation of Greater Mumbai (supra), it is not prudent to rely on the judgment of Md. Ali (supra) Issue of the operation of the bar under Section 195 (1) (b) of the Cr.PC is in-operative.

The Aforesaid argument of the petitioner is again misconceived in view of the fact that no embargo under Section 195 (1) (a) (i) of the Cr.P.C. will operate in respect of offences under Sections 193 , 199 , 200 , 209 of the IPC. therefore, the argument of the petitioner that the present complaint could have been filed by a public servant is erroneous. That apart, it is settled law that a complaint has to be read as a whole and therefore, scaling down and part quashing of the charges in not entertainable at this stage when any offence has been disclosed.

Further more, the reliance of the petitioner on Iqbal Sing Marwah v. Meenakshi Marwah , (2005) 4 SCC 370 [para 5] is misplaced as in the said report the issue which fell for consideration was the provision under Section 195(1) (b) (i) of the Cr. P.C. and therefore, the same has no bearing in the present case.

13. Mr. Mitra contradicted the ratio of the judgment of Hon'ble Apex Court in Iqbal Singh Narang (supra), and submits that it would be evident in the cited case that a complaint was made for the offence u/s 193 / 420 and 120B of IPC. Accordingly the case u/s 195(i)(b) and Section 195 (3) got permitted. Thus, in Iqbal Singh Narang (supra), the Hon'ble Supreme Court was not considering a case like the present case where the complaint is made u/s 181 IPC, thus the observation of Iqbal Singh Narang is not applicable in this case.

14. Heard the Learned Advocates.

15. Perused the written arguments placed on behalf of the opposite parties also perused the observation of Hon'ble Supreme Court. To discuss the legal issue involves in their case, it is required to go through the provision of law enumerated u/s 195 of Cr.P.C.

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents in evidence.---- (1) No court shall take cognizance--

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive ) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii)of any criminal conspiracy to commit such offence, Except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is administratively subordinate;

(b) (i) or any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), 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 in any court, or

(ii) of any offence described in section 463 , or punishable under section 471 , section 475 or section 476 of the said code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or 13

(iii) of any criminal conspiracy to commit, or attempt to commit, of the abetment of, any offence specified in sub-clause(i) or sub- clause(ii), [ except on the complaint in writing or that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause 9a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court, and, upon its receipt by the Court, no further proceedings shall be taken on the complaint:

16. It is true that court shall take cognizance of an offence punishable u/s 172 to 188 both inclusive only upon complaint in writing of the public servant concern or on some other public servant to whom he is administratively subordinate. Thus, it is clear that to initiate a complaint u/s 181 / 193 / 199 / 200 and 209 IPC of complaint must have to be lodged by a public servant.

17. Learned Advocate for the opposite party argued that the Municipal Building Tribunal is not a 'court' as discussed in section 195 (3) Cr.P.C. Thus the alleged "perjurious" statement before the Municipal Building can be very well challenged before the Magistrate by a private person. Thus the instant criminal proceeding is not barred by the provisions of Section 195 (1) (b) (i) of Cr.P.C.

18. It is true that the Municipal Building Tribunal is not defined as a court by the said legislation but it has also been alleged in the petition of complaint that the present petitioner has also made allegedly perjurious statements before the Hon'ble High Court in different proceeding. In my view the instant criminal complaint, the equities as required by the present OP before the Magistrate is not possible to be offered.

19. Hon'ble Apex Court in Shib Kumar Sharma Vs. Santosh Kumari as held that:

The courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law. if exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field

27. A court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute.

20. In this case the Magistrate cannot exercise its discretionary jurisdiction de hors the statutory law; the 15 discretion must be exercised in terms of existing statute. The statute does not permit the Magistrate to take cognizance of an offence punishable u/s 181 / 193 / 199 / 200 / 209 through a petition of complaint filed by a private person

21. The leave granted by this Hon'ble Court in WP No. 1140 of 2007 [to be agitated in any other proceeding in accordance with the law] does not permit the OP to initiate the instant criminal proceeding which is "not in accordance with law". Thus this legal point decided in favour of the present petitioner.

22. This court refrain itself on commenting other argument in respect of bar on the principal of res judicata or the merits of the power of attorney and its implication thereof.

23. In exercising the jurisdiction u/s 482 of the Code of Criminal Procedure for quashing a criminal complaint, Hon'ble Apex Court has laid down the guidelines in State of Hariyana Vs. Ch. Bhajanlal Ors.

24. According to the above guidelines [P-102(6)] of the Hon'ble Apex Court, the criminal complaint which is an 17 express legal bar engrafted in any of the provisions of the Code, is liable to be quashed. The instant criminal complaint and order of taking cognizance by the Leaned Magistrate is expressly bar u/s 195 (1) (b) (i) of Cr.P.C.; accordingly the instant criminal proceeding is liable to be quashed.

25. On the basis of the above discussion it appears to me that the instant criminal proceeding being No. CS- 0023522 of 2015 u/s 181 / 193 / 199 / 200 / 209 of IPC pending before the Learned MM, 6th Court against the present petitioner is barred by law and hence it is quashed.

26. Connected CRAN Applications if pending are also disposed of.

27. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.

(Subhendu Samanta, J.)