G. Mohan Das And Another vs State And Others

Ravi Krishan Kapur, J

1.This is an application under Section 482 of the Code of Criminal Procedure 1973 ("the Code") for quashing of proceedings pending before the Learned Chief Judicial Magistrate at Port Blair in Cr. Case No.8 of 2018 connected with FIR No.08 of 2019 under Regulation 32 of the Andaman & Nicobar Island Excise Regulation Act 1876 and Section 406 read with Section 34 of the Indian Penal Code.

2.At the outset, it is necessary to appreciate the facts which culminated in the filing of the aforementioned FIR. It is alleged that, the complainant was in possession of two separate premises, where he was running two separate bars namely Hotel Shalimar and Haddo Point Bar and Restaurant respectively. In March 2018, G. Mohan Das (the accused) requested the complainant to hand over possession of the aforesaid two hotels to the accused. It is further alleged in the complaint, that pursuant to negotiations, it was agreed by and between the complainant and the accused, that the complainant would give the accused possession of the said two hotels and the accused would permit the complainant to clear the stocks of liquor which had been purchased by the complainant and were lying in the aforesaid two hotels.

3.Pursuant to the aforesaid, the parties also entered into a written agreement. It is alleged that on 31 March, 2013 the accused forcibly took possession of both the bars and restaurants. The licences in respect of the said bars were renewed on 5 April, 2018, in the name of the complainant. However, the accused operated the bars and sold the liquor which had been purchased by the complainant from both the bars between 5 April, 2018 to 21 April, 2018. On 21 April, 2018, the licences in favour of the complainant was cancelled. The complainant thereafter approached the Deputy Commissioner and requested him to direct the accused to handover the pending stocks of liquor to the complainant. Notwithstanding repeated requests, the accused refused to hand over the stocks of liquor lying in the said two bars to the complainant. It is also alleged in the complaint that the accused has no bar licence and continued to hold huge quantities of liquor belonging to the complaint. In keeping such huge quantities of liquor in both the hotels, the accused had not only violated the provisions of Excise Rules and Regulations but had also committed offences under Regulation 32 of Andaman & Nicobar Excise Regulation of 1876. In the aforesaid background, the complainant requested the police authorities to initiate appropriate action on the basis of the complaint. However, no FIR was initiated by the police authorities on such complaint.

4.As such, the complainant filed an application under Section 156(3) of the Code before the Court of the Chief Judicial Magistrate, Port Blair seeking initiation of an investigation against the accused.

5.On 09.10.2017, the Chief Judicial Magistrate entertained an application filed under Section 156 (3) inter alia directing that the application under Section 156 (3) be treated as a complaint under Section 200 of the Code. Thereafter, by an order dated 14.11.2018, the complainant was examined under Section 200 of the Code and by implication, the learned Magistrate took cognizance of the complaint and further directed the police to investigate under Section 202 (1) of the Code. Thereafter, by an order dated 27.11.2018, on an application filed by the complainant to seize all quantities of alcohol, the learned Magistrate directed that in view of the pending investigation no such direction could be passed at this stage. Subsequently, on 24.12.2018, the learned Magistrate passed an order on the basis of an enquiry report submitted by the police referring the matter to the police for further investigation treating the complaint as an FIR and the matter was fixed on 04.02.2019 for a report.

6.Counsel on behalf of the petitioner submitted, that diverse proceedings have been initiated before different fora between the petitioner and the complainant and there are several orders passed by different Civil Courts. He submitted that, as per Regulation 32 of Andaman & Nicobar Island Regulation 1876, the punishment for an offence under Section 32 is imprisonment for a term not exceeding 6 months or with a fine not exceeding of Rs.1000/- or with both. He further placed reliance on Schedule-I of Code of Criminal Procedure 1973 Part-II, which provides that in respect of offences in respect of any other law if the punishment is less than 3 years the same is a non-cognizable offence. According to counsel, on behalf of the petitioner, the offence under Regulation 32 of the Andaman & Nicobar Regulation, 1876 is non-cognizable in nature. He submitted that by the impugned order, the learned Magistrate had directed that the complaint be treated as an FIR. This was clearly in excess of jurisdiction and the learned Magistrate in passing the impugned order erred in law in directing that the complaint be treated as an FIR. He placed strong reliance on the decision reported in the State of Haryana vs. Bhajan Lall AIR 1992 SC 604 at para 108. He also placed reliance on the decision Md. Yusuf vs. Smti Afaq Jahan and another reported in 2006(1) SCC 627 for the proposition that once the Magistrate takes cognizance he has to follow the procedure mentioned in Chapter XV of the Code. He also placed reliance on the decision reported in Vineet Kumar and others vs. State of Uttar Pradesh and others 2017(13) SCC 369 at para 39 to contend that the judicial process cannot be allowed to be converted into an instrument of oppression or harassment.

7.Counsel on behalf of the respondent no.2, being the de facto complainant, submitted that there was no illegality committed by the Magistrate in directing the police authorities to register the FIR after taking cognizance of the offence under Section 200. In any event, such submission is purely technical and does not constitute a ground on the basis of which an order under Section 482 of the Code ought to be passed. She placed reliance on the decision reported in Ranveer Singh vs. State of Uttar Pradesh & Others 2011 (14) SCC 92 for the proposition that even in case of a non-cognizable offence the Magistrate can direct investigation by the police. She submitted that the learned Magistrate did not commit any illegality in directing a preliminary enquiry and thereafter directing the police authorities to register the FIR. She submitted that the FIR reflected commission of offences under two sections i.e. Regulation 32 of the 1876 Regulation and Section 406 of the Indian Penal Code. As such, there was no transgression of any law and since there is ex facie a cognizable offence in the FIR. She submitted that the powers under Section 482 of the Code of Criminal Procedure ought to be sparingly exercised and since the allegations in the complaint prima facie make out a case this Court ought not to examine whether the allegations are likely to be upheld at the time of trial.

8.Counsel on behalf of the State submitted that the learned Magistrate strictly followed the procedure enshrined under the Code and there is no violation of any provision of law. He submitted that the learned Magistrate after perusing the report of the police authorities directed them to register an FIR and as such there was no wrongdoing nor any illegality on the part of the Magistrate. He submitted that the complaint ex facie discloses an offence under Section 406 of the Indian Penal Code. As such, even if Regulation 32 is considered to be non-cognizable, the FIR was justifiably registered. He submitted that the present petition was devoid of any merits and was liable to be dismissed.

9.Section 482 of the Code of Criminal Procedure inter alia provides as follows:

"482. Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

10.It is well settled that the jurisdiction under Section 482 saves the inherent powers of the High Court to make such orders as may be necessary. However, it is a rule of practice that the powers under Section 482 ought to be exercised sparingly and not as an Appellate or a Revisional Court. The power possessed by the High Court under Section 482 a very wide and the very plenitude of power requires great caution in its exercise. Courts are generally very careful to see that their decision in the exercise of powers under this section is based on sound principles. The inherent power ought not to be exercised to stifle a legitimate prosecution. The powers under Section 482 are to be exercised ex debito justitiae, in order, to do real and substantial justice for the administration of which the Courts exist. Section 482 saves the inherent power of the High Court and such a power can be exercised only to prevent abuse of process of Court and otherwise secure the ends of justice.

11.In State of Haryana vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 at paragraph 102 the Constitutional Bench of the Supreme Court enumerated the categories of cases where the High Court can exercise its power under Section 482 to prevent abuse of process of law and to secure the ends of justice:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5)Where the allegations made in the FIR or complaint 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.

(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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."

12.In State of Karnataka vs. M. Devendrappa and Another reported in (2002)3 SCC 89 while enunciating the principles to be followed whilst hearing an application under Section 482 of the Code it was held as follows:

"When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal[1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] . A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases."

13.In Gian Singh vs. State of Punjab reported in (2012) 10 SCC 303 the Hon'ble Supreme Court of India laid down the guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in exercise of its inherent jurisdiction:

"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

14.More recently, in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & Others vs. State of Gujarat and Another reported in (2017) 9 SCC 641 the Hon'ble Supreme Court held as follows:

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

15.In the decision of Vineet Kumar and Others vs. State of Uttar Pradesh and Another reported in (2017) 13 SCC 369 it was held as follows:

41.Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding.

16.The primary contention of the petitioner is that the learned Magistrate erred in directing the police authorities to treat the complaint as an FIR. Thus, the order dated 24.12.2018 is per se in excess of jurisdiction, contrary to law and liable to be quashed.

17.On the aspect of the jurisdiction of the Magistrate under Section 156 (3)of the Code, it is well settled that there are several modes in which a complaint can be disposed of after taking cognizance. In the first place, cognizance can be taken, on the basis of three circumstances: (1) upon receiving a complaint of facts which constitute such offence; (2) upon a police report of such facts; and (c) upon information received from any person other than the police officer or upon his own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to act accordingly.

18.In Abhinandan Jha v. Dinesh Mishra [AIR 1968 SC 117 : (1967) 3 SCR 668 : 1968 Cri LJ 97] it has been held that while a Magistrate can order the police to investigate the complaint he has no power to compel the police to submit a charge-sheet on a final report being submitted by the police. In such cases, a Magistrate can either order re-investigation or dispose of the complaint according to law.

19.Moreover, in Devarpalli Lakshminarayan Reddy v.V. Narayana Reddy the Court observed that [SCC p. 258, SCC (CRI) p. 386, para 17]: The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3)."

20.In Ramdev Food Products Private Limited vs. State of Gujarat reported in (2015) 6 SCC 439 it has been held that the position is that even if a Magistrate receives a complaint under Section 190 he can act under Section 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post-cognizance stage Chapter 12 of the Code states that so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say, once a Magistrate starts acting under Section 190 and the provisions following he cannot resort to Section 156(3).

21.In Tula Ram and Others vs. Kishore Singh reported in (1977) 4 SCC 459 it has been held that where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

22.In Suresh Chand Jain vs. State of M.P. and Anr. reported in (2001)2 SCC 628 at para 10 it has been held as follows:

The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

23.In Mohd Yousuf vs. Afaq Jahan reported in (2006) 1 SCC 627 at paras 7 to 11 it has been held as follows:

"7. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.

8.The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

9.But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".

10.This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

11.The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."

24.I am of the view in the facts and circumstances of the instant case, the learned Magistrate in passing the impugned order exceeded his jurisdiction and acted contrary to law. I am of the view that the learned

Magistrate did not follow the procedure enshrined under the Code. I find no substance in the contention of the private respondent no.2 that the directiononthepoliceauthoritiestoregistertheFIRaftertaking cognizance is purely technical. This is an ex facie jurisdictional error going to the root of the powers of the Magistrate whilst exercising jurisdiction under Section 156(3). By the order dated 14.11.2018 having proceeded in the direction under Chapter XV/XVI of the Code, the learnedMagistratecouldnothaveretracedhisstepstothepre- cognizance stage and directed an investigation under Section 156(3) of the Code. Such a direction could not have been passed in an application under Section 156 (3). Hence, I am of the view that the impugned order is exfacieinexcessofjurisdictionandaccordinglysetaside.The consequentialFIRfiledpursuanttotheorderdated24.12.2018isaccordingly quashed.

25.In view of cognizance being taken, I reiterate that the direction containedintheorderdated24.12.2018passedbythelearned Magistrate to register the FIR under Section 156(3) Cr.P.C. was contrary to law. Hence, the order dated 24.12.2018 passed by the learned Chief Judicial Magistrate, District and Sessions Court, directing registration of FIR and the consequential FIR are quashed. However, any investigation done pursuant to such FIR may be treated as further enquiry/ investigation under Section 202 Cr.P.C and in conclusion of such further enquiry, a Report be filed before the learned Magistrate and the same be considered in accordance with law.

26.In view of my finding on this aspect of the matter, I do not find it necessary to go into any of the other contentions raised by the parties.

Accordingly, CRR 001 of 2019 stands disposed of with the aforesaid directions.