Bimal Barua and Another vs State of U.P. and Others

I.M. Quddusi, J.—These are three applications registered as separate cases filed u/s 482, Code of Criminal Procedure for invoking Inherent jurisdiction of this Court. In Criminal Miscellaneous Application No. 2925 of 1996, Bimal Barua v. State of U.P. and Ors., the applicants have prayed for the quashing of the proceedings of case No. 77 of 1996, Farhad Shikoh Khan v. Bimal Barua pending in the Court of Chief Judicial Magistrate, Varanasi and the registration and investigation of case Crime No. C. 10/1996 u/s 392, I.P.C. registered at police station Cantt., Varanasi against the applicants. In other two applications, i.e., in Criminal Misc. Application No. 2951 of 1996 and 2952 of 1996, the same applicants have prayed for quashing of the proceedings of the Criminal cases No. 13 of 1996 and 84 of 1996, Jafar Khan v. Bimal Barua and Ors. and Nasar Jama Khan v. Bimal Barua and Ors., respectively pending in the Court of Chief Judicial Magistrate, Varanasi.

The brief facts of the cases are that Tata Engineering Locomotive Co. Ltd. (hereinafter referred to as TELCO'') has launched a hire purchase scheme, according to which if a person is willing to buy a Tata Diesel vehicle from its authorised dealer''s Show Room, he may do so under that scheme on hire purchase basis. The applicants are Chief Executive Manager and Asstt. Manager in a firm, namely, M/s. Rohit Automobiles Pvt. Ltd., Varanasi, which is an authorised dealer of TELCO. As per terms and conditions of the hire purchase, a customer desiring to buy a vehicle on hire purchase basis, would have to deposit initially an amount as required under the hire purchase scheme with the dealer and thereafter the dealer would hand-over the Tata Diesel Vehicle manufactured by the TELCO. In the present cases, the concerned three Respondents, i.e., Respondent No. 3 in each case, namely Mohd. Farhad Khan, son of Zafar Ali Khan, Respondent No. 3 in Criminal Misc. Application No. 2925; Jafar Khan son of Zafar All Khan, Respondent No. 3 in Criminal Misc. Appellate No. 2951 of 1996; and Nasar Jama Khan son of Late Ali Jama Khan Respondent No. 3 in Criminal Misc. Application No. 2952 of 1996 paid a sum of Rs. 77,732; 87,500 and 87,500 respectively towards initial payments. It is also significant to indicate here that in fact, four separate hire purchase agreements were executed by four persons in which three are aforementioned Respondent No. 3 in the above noted three cases and one Mr. Jayanti Pathak, who was business associate of Respondent No. 3 Mohd. Farhad Khan. Jafar Khan is his brother and Nasar Jama Khan is his cousin. Thereafter Mohd. Farhad Khan issued a cheque dated 28.4.95 amounting to Rs. 1,59,464.00 as hire purchase amount of instalment but the same was dishonoured but this amount was deposited by him in cash with the applicants. Thereafter he again submitted a cheque of Rs. one lac dated 9.8.95 which was again bounced and then he deposited a sum of Rs. 37,500 in cash. The other three persons did not prefer to buy the vehicle and they requested to adjust the amount of their initial deposit of Rs. 87,500 towards the hire purchase instalment of Mohd. Farhad Khan to whom the vehicle was delivered. Body of the vehicle was got prepared by Mohd. Farhad Khan in the shape of a bus. According to the applicants, he committed default in making payment as per terms of hire purchase agreement and as such the Company was entitled to seize the vehicle. Thereafter before seizure of the vehicle Farhad Khan filed a civil suit having an apprehension that the vehicle may be seized but no interim injunction was granted in his favour. According to the applicants, they engaged a private security of Bodh Gaya, i.e., Kumar Security Services for the purpose of taking possession of the vehicle and the Company after taking over the possession of the vehicle in question from Kumar Security Service prepared an inventory list of the vehicle seized and informed about the same to the officer-in-charge of police station Bodh Gaya (Bihar) and also filed written statement in the civil suit being Civil Suit No. 318 of 1996, Farhad Khan v. TELCO and Ors. in which it was stated that the Company has taken over possession of the vehicle.

On the other hand, Farhad Khan filed an application before the Chief Judicial Magistrate, Varanasi supported by an affidavit stating therein that the applicants along with three other persons had forcibly taken away the bus of Respondent No. 3 from his residence in his absence in the morning of 12.7.1996 when he was not present at his house and his brother Mohd. Farooq was present there who resisted the taking over of the bus but V.K. Jain and Rajesh Misra showed pistol and targetted at his fore-head (KANPATI) and threatened that in case he shouts or cries or protests, they will kill him. On this, due to fear his brother could not do anything and by showing pistol Mr. Bimal Barua and V.K. Jain along with his associates, namely, Rajesh Misra and S.K. Sinha got seated in his car and followed the bus. He has further alleged that he spent a sum of Rs. five lacs in the construction of the body of the bus besides making payment of instalments. Respondent No. 3 by the said complaint prayed for getting investigation of the incident by the officer-in-charge of the Police Station, Varanasi Cantt. and to register the first information report but in vain. Then he sent application to the Senior Superintendent of Police and met him also but nothing has been done by them. On this complaint, the learned Chief Judicial Magistrate directed the officer-in-charge police station, Varanasi Cantt. to investigate the matter and register the first information report.

In other two cases, separate applications were moved before the Chief Judicial Magistrate by Jafar Khan and Nasar Jama Khan. It has been indicated that they have paid Rs. 87,500 each but they were not provided vehicles and the money has not been refunded to them nor any interest has been paid to them. On 16.7.1996, when a contact was made with the accused persons they refused to accept the receipt of money, started abusing and pushed them out. On these two applications moved separately also the learned Chief Judicial Magistrate directed the officer-in-charge police station, Varanasi Cantt. to investigate the matter and register the first information reports.

It has been alleged that the applicants apprehend that they will be arrested by the police as the police has registered cases against them as case Crime No. C. 10/1996 u/s 392, I.P.C. case Crime No. C. 11/1996 under Sections 419, 420, 504 and 506, I.P.C. and case Crime No. C. 12/1996 under Sections 419, 420, 504 and 506, I.P.C. It has been averred that the police is trying to make arrest of the applicants treating the same as police case.

The contentions raised by the learned Counsel for the applicants are that u/s 156, Code of Criminal Procedure, the Magistrate can only direct investigation but he has no jurisdiction to direct the police to register a case. The second contention of the learned Counsel for the applicants is that the matter is a civil dispute between the parties and according to hire purchase agreement, the Petitioners have every right to take the possession of the vehicle in question and the same is no offence and the proceedings are mala fide against the applicants.

With regard to the first contention raised by the learned Counsel for the applicants to the effect that the Magistrate has directed officer-in-charge of the police station to register a case and investigate in accordance with law, it is necessary to peruse the provisions of Sections 154 and 156 of the Code of Criminal Procedure. They are:

Information in cognizable cases.-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in Sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.

Police Officer''s power to investigate cognizable cases.-

(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.

A perusal of Sub-section (3) of Section 156, Code of Criminal Procedure shows that any Magistrate empowered u/s 190, Code of Criminal Procedure may order for investigation in the manner indicated in that section meaning thereby that the Magistrate may order for an investigation in the manner provided in the Code, in the case of a cognizable offence. Section 154, Code of Criminal Procedure provides that every information relating to the commission of a cognizable offence, if given orally, shall be reduced in writing and every such information whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by the officer-in-charge of the police station in such form as the State Government may prescribe in this behalf. In the case of a direction of investigation by the Magistrate on the application of a person, it is incumbent upon the officer-in-charge of the police station to enter the substance of such application to the Book as aforesaid and then only he can proceed with the investigation as indicated in Section 157, Code of Criminal Procedure which is reproduced as below:

Procedure for investigation.-

(1) If, from information received or otherwise, an officer-in-change of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case and, if necessary to take measures for the discovery and arrest of the offender:

Provided that:

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot.

(b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer-in-charge of the police station shall state in his report his reasons for not fully complying with the requirements of that Sub-section, and, in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

But in the matter when the Magistrate himself directs an investigation, the provisions of Section 154, Code of Criminal Procedure would be followed first and thereafter would proceed to investigate the case and, if necessary, take measures for the discovery and arrest of the offencer, and, as such, it is immaterial whether the Magistrate directs to register a F.I.R. and then to investigate or directs only to investigate the matter to the officer-in-charge of the police station.

Besides this Section 190(1) also provides that any Magistrate may take cognizance of any offence upon a police report and, as such, the police report may be obtained before taking cognizance by the Magistrate on completion of investigation directed u/s 156(3), Code of Criminal Procedure of course u/s 190(1)(a) the Magistrate may entertain a complaint of facts which constitute such offence and take cognizance on it in the manner provided in Chapter XV, Code of Criminal Procedure But this complaint u/s 190(1)(a), Code of Criminal Procedure is quite different to the order passed on the application in exercise of powers by the Magistrate u/s 156(3), Code of Criminal Procedure As no investigation under the law is possible without first recording substance of the complaint/application regarding the commission of a cognizable offence in the Book prescribed by the State Government and hence in the instant matter if the Magistrate has directed the officer in charge of the police station to register a case and then investigate, there is no illegality therein. It is hereby clarified that this does not mean that the Magistrate instead of directing the police to investigate the case cannot register the application as complaint case.

With regard to the second contention raised by the learned Counsel for the applicant to the effect that the matter is of civil dispute between the parties and according to hire purchase agreement, the Petitioners have every right to take possession of the vehicle in question and the same is no offence and the proceedings are mala fide against them to appreciate the argument of the learned Counsel for the applicants a close scrutiny of the facts and circumstances of the present case is necessary. One of the documents relied upon by the Petitioner in support of his contention is the hire purchase agreement annexed as Annexure ''1'' to the affidavit filed in support of the application numbered as Criminal Misc. Application No. 2925 of 1996 according to which the amount was to be paid in 35 instalments starting from May, 1995, payable in each succeeding calendar month. According to the hire purchase agreement, the hirer had to pay a sum of Rs. 97,732.00 as initial payment by way of hire on the execution of the agreement. The first instalment was of Rs. 19,601.00 and the remaining 34 instalments were of Rs. 16,400. The applicants have not indicated as to whether at the time of the execution of the agreement they had received a sum of Rs. 97,732.00 or not as they knew that in case they make a dispute on it, the whole execution will become bad, as it is the condition of the agreement that the initial payment at the time of the execution of the agreement, the hirer shall pay a sum of Rs. 97,232.00 and that was the condition precedent for giving delivery of the vehicle by the Owner/Financer to the hirer. Any how, they have mentioned in their affidavit that the following amount has been paid:

Rs. 77,732.00

Rs. 1,59,646.00

3 Rs. 37,500.00

Total Rs. 2,74,696.00

Besides the above, three other persons who had requested for adjustment of their amount of initial deposit towards the hire purchase agreement of Mohd. Farhad Khan had deposited the following amounts:

Nasar Jama Khan Rs. 87,500.00

Jafar Khan Rs. 87,500.00

Jayanti Pathak Rs. 87,500.00

Total Rs. 2,62,500.00

Thus, the total amount in deposit with the applicants was Rs. 5,37,196.00 on 12.7.1996 when the vehicle in question was seized. Till that date, even in accordance with the hire purchase agreement only 13 instalments covering an amount of Rs. 2,13,000 had become due. Thus, according to the contention of the contesting opposite party No. 3 only a sum of Rs. 2,13,000 had become due whereas a sum of Rs. 5,37,000 were already in deposit with the applicants. On the other hand, the applicants have taken a plea that the initial deposits of the other three applicants amounting to Rs. 87,500 each were towards the booking of a vehicle under separate hire purchase agreement and on cancellation of the same, some deduction had to be made. Any how, even if it is presumed that a handsome amount was liable to be deducted from Rs. 87,500 each deposited by the three applicants, it cannot be presumed that the applicants of the present petition would be entitled to deduct the whole amount. Thus, prima facie it cannot be said that on the date when the vehicle was seized, any amount was due against the opposite party No. 3, namely, Farhad Khan after adjusting the amount of the other three persons as requested by them even after deducting the initial cancellation charges, if any.

Now coming to the contents of the application which has been registered as First Information Report, giving rise to case Crime No. C. 10 of 1996 u/s 392, I.P.C. at police station Cantt. Varanasi, it has been alleged that the applicants Bimal Barua and V.K. Jain had shown pistol and had put the same on the forehead of the brother of Respondent No. 3, in the absence of the opposite party No. 3 while they were snatching away the bus. It is but natural that in the absence of opposite party No. 3, who had possessed the vehicle and knew the full facts and details about the payment of instalments, etc., his brother must have resisted in taking away the possession of the vehicle by the applicants and his companions. At this stage, it also cannot be said to be unusual to show pistol to get away from the said resistance by the brother of opposite party No. 3. However, all this is the matter of evidence. Besides this, the case of the present applicants is that they had taken away the physical possession of the vehicle in question with the help of private security and not under the search and recovery issued by a Magistrate to the regular police, the apprehension in the mind of the brother of opposite party and other persons present could not be ruled out that the vehicle was being taken away by some unauthorised persons and naturally they must have resisted to the same. It is also the matter of evidence, as, prima facie, the registration number of the vehicle has not been given by the parties, there was no other way out except to presume that the applicants would must have confirmed the identification of the Vehicle and in that circumstance also it might be possible that the Financers would must have accompanied the private security personnel in case they were engaged by the present applicants. However, all this depends upon the evidence which can only be given in the trial or during the course of investigation and at this stage, while exercising the jurisdiction u/s 482, Code of Criminal Procedure, this Court cannot hold a trial and thus no finding can be recorded in this regard by this Court.

Learned Counsel for the applicants has placed reliance on the certain case laws, including the law laid down by Hon''ble the Supreme Court of India, in the case of Sardar Trilok Singh and Others Vs. Satya Deo Tripathi, .In that case, the dispute between the parties was relating to the purchase of a truck. The total cost incurred in the purchase of the truck was near about 60,000. On March 29, 1973 an agreement was entered into between the Respondent and his then partner one Bhagwati Prasad on the one hand and M/s. Sardar Finance Corporation, Kanpur on the other, which firm was represented by Appellant No. 1, as its partner, in accordance with which about half the money was advanced by the said firm which enabled the complainant and his partner to acquire the truck. According to the complainant''s case, the amount advanced by the said firm was by way of loan while according to the case of the Appellant, it was on the basis of a hire-purchase agreement entered into between the parties in support of which formal agreement in writing was also executed. The compalinant''s case was that only a blank form was got signed by him along with other several papers bearing stamps and the form had not been duly filled up. The complainant''s case further was that he had paid back two monthly instalments the total of which was Rs. 3,566 and the third instalment was payable on July 31, 1973. But before that, all the accused in a high-handed manner during his absence came to his house and in spite of protest by his wife forcibly under threat of arms removed the truck and thus, they are said to have committed the various offences including the offence of dacoity. The case of the Appellants was that according to the hire-purchase agreement, a sum of Rs. 1,783 was to be paid every month by the 15th day of the month. The first instalment payable was on May 15, 1973, second on June 15, 1973 and the third on July 15, 1973 and so on. The entire sum due was to be cleared in 23 instalments. On default of any one monthly instalment, the financier had the right to terminate the hire-purchase agreement even without notice and seize the truck. Since July instalment was not paid by the 15th of that month, the complainant and his partner surrendered the truck on July 24, 1973. In a nutshell, the case of the Appellants was that the Respondent''s case against them and others that they committed any offence on July 30, 1973 was absolutely false. One more important fact in that case was that the Respondents previously lodged a first information report with the police on August 20, 1973 in respect of the alleged occurrence. There was prolonged investigation by the various police officers and ultimately a final report was submitted, by the investigating agency. The Respondents filed objection/protest petition before the Magistrate who dealt with the final report. But the Magistrate accepted the report by his order dated April 28, 1973. The Respondents filed revision before the Sessions Judge from the order of the Magistrate accepting the final report. The revision was dismissed by the Sessions Court. The Respondents then went to the High Court u/s 482, Code of Criminal Procedure. The High Court by its order dated April 16, 1976 summarily dismissed the same. Thereafter the complaint was filed on May 1, 1976.

In the instant matter, the fact is that only the Magistrate has directed the investigation and no report has been filed by the police so far. The matter is under investigation. Besides this, according to the own statement made by the applicant in the affidavit filed in support of the application, the aforementioned sum was in deposit with them when they had taken possession of the truck. In this way, the facts of Sardar Trilok Singh''s case are entirely different from the facts of the present case. In the present case, in case it is proved that according to the hire-purchase agreement, no amount was due on the date when the possession of the vehicle in question was forcibly taken over by the applicants, it cannot be ruled out that in getting the possession of the truck mens rea to commit offence was not there and, as such, it is not a fit case for interference at this stage.

The other case law referred to by the learned Counsel for the applicants ar K. A. Mathai alias Babu v. Kora Bibbikutty, (1996) 7 SCC 212 . In this case also, it has been held by the Hon''ble Supreme Court that in the event of non-payment of the instalments due, the financer had every right to take possession of the bus. This will also depend upon the finding as to whether, in fact, any amount was due or whether an excess amount of the applicant and his companions were already in deposit with the Financer, a prayer for which had already been made by them earlier. Of course, in case any default is found to have been committed in making payment of instalment the applicants would be able to justify their action of taking away the vehicle. But, of course, it has to be decided by investigating agency or a competent court that if a handsome amount was already in deposit with the applicants, forcibly taking away the possession of the vehicle in question establishes mens rea on the part of the applicants for the crime and, as such, the criminal proceedings or investigation of a complaint cannot be quashed at this stage.

The other two cases are with regard to the offences punishable under Sections 406, 419, 420, 504 and 506, I.P.C. in which also the learned Magistrate has directed the officer-in-charge police station to register a case and investigate the matter in accordance with law. The contents of the applications moved u/s 156(3), Code of Criminal Procedure before the Magistrate are not related to any hire purchase agreement and taking forcible possession of the vehicle but they relate to some incident allegedly taken place on 16.7.1986 and also for cheating the complainants of a sum of Rs. 87,500. A bare reading of the complaints do show a prima facie cognizable offence and this is also a matter for consideration by the court or the Investigating Agency as to whether the applicants adjusted the amount of Rs. 87,500 deposited by the complainants towards the dues of Farhad Khan after deducting the cancellation charges, if any. Then, of course, the applicants may get success in proper accounting of the money deposited by the aforesaid three persons, and may show that there was no mens rea to commit the offence. In this way, in these two cases also this Court cannot interfere in its inherent jurisdiction u/s 482, Code of Criminal Procedure.

A Full Bench of this Court in the case of Ramlal Yadav v. State of U.P. 1990 All LJ 47 has held:

...Even if the power of investigation is exercised by a police officer mala fide, the High Court cannot quash the investigation in exercise of its inherent powers u/s 482, Code of Criminal Procedure.

Further, in the case of Ibrahim Abdulrahim Shaikh (dead) by L.Rs. Vs. Krishnamorari Sripatlal Agarwal (dead) by L.Rs., . the Hon''ble Supreme Court has held as under:0

...The High Court was not justified in quashing the proceedings on the ground that the dispute was of civil nature and the complaint about removal of movable articles and proceedings in that regard could not be said to be abuse of process of law.

The Hon''ble Supreme Court in the case of State of Punjab Vs. Devinder Kumar and Others, , has given the guideline that the High Court cannot arrive at a conclusion on the guilt or innocence of the accused on the basis of material on record at a stage prior to the leading of evidence by the prosecution.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Hon''ble Supreme Court has held as under:

...The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.

Similar is the observation of the Hon''ble Supreme Court in the case of State of T.N. Vs. Thirukkural Perumal, , where it has been held that the High Court''s power to quash first information report and criminal proceedings should be exercised sparingly keeping in view the guide-lines laid down by the Supreme Court in various decisions.

In view of the above discussions and keeping in view the law laid down by the Hon''ble Supreme Court in various cases, including the cases cited above, I am of the opinion that these are not fit cases for interference in exercise of inherent jurisdiction u/s 482, Code of Criminal Procedure

In the result, the petitions fail and are hereby dismissed. There shall be no order as to costs.