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Judgment
S.R. Brahmbhatt, J.—The petitioners, who have been named as accused Nos. 1 and 2 in F.I.R. being C.R. No. I-16/2010 registered with D.C.B. Police Station, Surat City, on 28-3-2010 for the offences punishable under Sees. 420, 465, 467, 471 read with Sec. 114 of Indian Penal Code, have approached this Court under provision of Sec. 482 of Criminal Procedure Code, 1973, praying for quashing of the F.I.R. on the grounds mentioned in the memo of the petition.
The facts in brief as narrated by the petitioners in the memo of the petition deserve to be set out as under in appreciating the rival contentions of learned Advocates for the parties.
2.1. The petitioners and the complainant jointly as partners entered into an agreement of Satakhat (Agreement to Sale) dated 24-6-1997 with Mukeshbhai Balwantbhai Patel and Nayanbhai Balwantbhai Patel for purchasing land bearing Revenue Survey No. 189, Block No. 118 of village Utran, taluka Choryasi, admeasuring 1,740 sq. meters. After execution of the said satakhat as alleged by the petitioners, the complainant relinquished his 25% of share in the proposed purchase of land. The complainant alleged that the agreement for relinquishment was forged by the petitioners and on that basis the sale transaction between the petitioners and original land owners was sought to be assailed. The complainant has also filed Regular Civil Suit No. 196 of 2001 against the present petitioners and the present petitioners have also filed Regular Civil Suit No. 72 of 2001 against the complainant. The learned trial Court granted interim relief in favour of the complainant in both the civil suits hence the petitioners preferred Appeal From Order and writ petition challenging the same in this Court. This Court while disposing of those matters recorded its prima facie finding in respect of deed of relinquishment, alleged to have been executed by the complainant, to be a forged document and the complainant who had in fact filed earlier criminal complaint in the Court of learned J.M.F.C. against the present petitioners as well as five others in the same set of facts as being Inquiry Case No. 15 of 2002, wherein learned Magistrate had issued inquiry, chose to lodge another criminal complaint in form of F.I.R. only against present petitioners on the same facts on which the earlier criminal complainant was filed being Criminal inquiry Case No. 15 of 2002, hence the present petitioners preferred this petition under Sec. 482 of Criminal Procedure Code for seeking quashing of the said F.I.R.
2.2. The original complainant-respondent No. 2 has lodged complaint to the effect that the complainant and the present petitioners, jointly in partnership purchased land bearing Survey No. 189, Block No. 118 admeasuring 1,740 sq. meters from its original owner on payment of Rs. 17 lakhs. This document was made on 24-6-1997. However, the accused Nos. 1 and 2 in year 1999 forged document and deed of relinquishment so as to deprive the complainant of his legitimate share in the land and on that basis had the land transferred in their own name, and thereby, committed offence punishable under Secs. 420, 409, 467, 468, 471 and 120B of Indian Penal Code. The complainant has further alleged in the complaint that he had paid his share of sale price and as the possession was handed over, he was residing on the land and the land is in his possession. The complainant has further stated in his complaint that the accused No. 1 filed proceedings in Civil Court being Regular Civil Suit No. 72 of 2001 on 18-3-2001 and complainant also filed proceedings being Regular Civil Suit No. 196 of 2001 on 23-5-2001. The accused produced sale-deed executed in their favour by original owners in the proceedings of aforesaid Civil Suit, and hence, complainant came to know that he had been duped by the accused Nos. 1 and 2 as he received a Xerox copy of deed of relinquishment wherefrom it was found that he was shown to have relinquished his right over the property in favour of the accused. He has averred in the complaint that the said document dated 24-6-1997 had never been executed by him. His signature was forged, though the said document is said to have been made in year 1999 it was projected as if it was executed in the year 1997. The forged document contains forged signature of the complainant as well as that of his son. Thus, on the strength of the said forged signatures and documents the accused Nos. 1 and 2 appropriated the property in their favour, and hence, proceedings were required to be taken against them. The complainant has narrated with regard to the observations of this Court in the memo of the petition and also in the complaint, quashing whereof is sought by present petitioners-original accused.
2.3. Learned Advocate for the petitioners contended that respondent No. 2 with a view to exert undue pressure and score mileage in the civil proceedings filed the impugned complaint which is nothing but sheer abuse of process of the Court, and hence, same is required to be quashed and set aside.
Learned Advocate for the petitioners invited this Court''s attention to various facts narrated in the complaint being Criminal Inquiry Case No. 15 of 2002, F.I.R. No. I-16 of 2010 and made following submissions :
(a) The unexplained delay of about 9 to 10 years in filing F.I.R. is fatal to further investigation.
(b) The learned Advocate for the petitioners submitted that the petitioners are ready to face the complaint being Inquiry Case No. 15 of 2002 as it is filed and wherein the report is also filed by the police, and hence, continuance of Criminal Complaint in the form of F.I.R. being C.R. No. 16 of 2010 registered with D.C.B. Police Station is abuse of process of law. The petitioners do not mind facing the private complaint as it must be brought to its logical end. They are aggrieved by filing of police complaint in form of first information report impugned in this petition.
(c) The observations made by this Court in Appeal From Order are tentative as they have been made at the time of disposing of the interim injunction application. They would not give any cause of action for filing any criminal complaint viz. F.I.R.
(d) Section 210 of the Cr.P.C. would not be applicable to the facts of the present case as the complainant has chosen not to take the private complaint to its logical end.
(e) The mala fide intention of the complainant is self-evident from the facts that in the private complaint, he has implicated 7 persons as the accused whereas in the F.I.R. in question he has selected only the present petitioners to be accused and no reasons are given for dropping the remaining persons from the array of accused.
(f) The concerned police officer has filed report pursuant to the inquiry ordered in Criminal Case No. 15 of 2002 which is also not adverse to the present petitioners, and therefore, petitioners cannot be waxed twice for same allegations.
(g) The complainant has not come forward with clean hands. He has suppressed filing of private complaint at the time of registration of F.I.R. that vitiates the very registration of F.I.R. as it amounts to fraud and fraud vitiates everything.
(h) Learned Advocate for the petitioners has fairly submitted that in view of allegations made in the F.I.R. it would not be fair to plead that the allegation are nothing but indicative of only a civil dispute between the parties. The Advocate for the petitioners has pleaded that only on grounds of complainant''s mala fide intention, harassment and it being abuse of criminal proceedings, the F.I.R. in question needs to be quashed and set aside.
(i) Mr. Pandya, learned Advocate for the petitioners further canvassed the proposition of law that broadly speaking quashing petitions are of two nature, firstly, the petition in which the allegations made in the F.I.R., or complaint are to be looked into as no offence could be said to have been made out from the plain reading thereof, and secondly, where the abuse of process of law is patently made basis for challenging the complaint in question, than in that case the Court is under obligation to look at all the documents that may be adduced by the accused in the quashing petition in order to ascertain whether there is a real abuse of process or not, and for this, he placed reliance upon the decision of the Apex Court in case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others,
Learned Advocate for the petitioners, relying upon the decision in case of Sankaran Moitra Vs. Sadhna Das and Another, contended that filing of F.I.R. impugned herein when the Inquiry Case No. 15 of 2002 was already pending, amounts to abuse of the process of the Court as the provisions of Sec. 210 of the Cr.P.C. also would not save the subsequent F.I.R., and therefore, it may be quashed being abuse of the process of the Court. The learned Advocate for the petitioner submitted that when the private complaint was filed and cognizance was taken and when the report was submitted, the investigation was not in progress. The word ''inquiry'' or ''trial'' will have to be interpreted disjunctively, meaning thereby, when inquiry is directed, the investigation must be in progress or where the trial is directly commenced under Sec. 204 the investigation must be in progress. In this case, therefore, Sec. 210 would not apply. The learned Advocate for the petitioners further submitted that for invoking Sec. 210, the accused should be common and in the instant case, the accused mentioned in the complainant are different than F.I.R. This submission is based upon reading of Sec. 210(3) of Cr.P.C. The learned Advocate for the complainant further submitted that filing of F.I.R. after 8 to 10 years is not sufficient to attract Sec. 210 of Cr.P.C. The learned Advocate submitted that the complainant has to make oral or written request for invoking Sec. 210, and at this stage, it is out of question.
The learned Advocate for the petitioners relying upon decision in case of Nunaram and Others Vs. State of Rajasthan and Another, contended that Sec. 210 deals with a case where pending a case arising on a private complaint it is brought to the notice of the Court that a police investigation is in progress, and it does not cover a case after the police charge is filed, an aggrieved person approaches a Criminal Court with a private complaint with a slightly different version of the same transaction or implicating more persons than are found as accused in the police charge. In this view of the matter, the facts of the case do not attract the provisions of Sec. 210, Cr.P.C. at all.
The learned Advocate relying upon the decision of the Orissa High Court in case of Banchhanidhi Mahapatra and Others Vs. State of Orissa and Another, contended that Sec. 210 could not be invoked straightaway when private complaint as well as police complaint are filed, it has its limited purview only in the cases where private complaint is filed when already there exists a police complaint and these facts are brought to the notice of the learned Magistrate than in that case only the learned Magistrate is, under Sec. 210, required to stay the proceedings on private complaint during pendency of the investigation.
The learned Advocate Shri Pandya for the petitioners apropos the submission of the learned Counsel for the respondent No. 2, submitted that the investigation starts with the registration of the offence placing reliance upon the decision in case of Dilawar Singh v. State of Delhi, reported in 2007 (12) SCC 641, submitted that the said judgment contains no reference to the express provisions of Sec. 157 Proviso B, and hence, it is of no avail to the respondent No. 2. In fact the Sec. 157 Proviso B would show that the investigation does not start with entering of or recording informant''s information by way of F.I.R.
The learned Advocate for the petitioners relying upon the decision of the Apex Court in case of Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, contended that inordinate delay in filing F.I.R. in itself being sufficient to vitiate the same it needs to be quashed. The delay occurred in filing F.I.R. if not explained properly by the complainant than such unexplained delay would vitiate the F.I.R., and hence, the same is required to be quashed.
The learned Advocate for the petitioner relying upon the decision in case of T.T. Antony Vs. State of Kerala and Others, submitted that two complainants in form of private complaint being Inquiry Case No. 15 of 2002 and F.I.R. I-16 of 2010 would not be permitted, and therefore, the F.I.R. I-16 of 2010 is required to be quashed.
The learned Advocate for the petitioners relying upon the decision of the Apex Court in case of Sushma Mutreja Vs. Union of India and Others, contended when the Apex Court in this case where the complaint against the accused on the allegation that goods hypothecated to the complainant Bank were sold off by the accused committing criminal breach of trust and when in the civil suit filed by the Bank the accused paid the amount the complaint was held to be liable to be quashed the present F.I.R. filed by the respondent No. 2 also is required to be quashed as both the complainant as well as the accused have filed Civil Suits for the same property.
Thereafter, relying upon the decision of the Apex Court in case of Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, , submitted that where the complainant did not come with clean hands to the Court his complaint was required to be quashed on that ground. In the instant case, the complainant has lodged the F.I.R. in question without disclosing pendency of earlier private complaint filed by him being Inquiry Case No. 15 of 2002, and as he has suppressed material facts while lodging the F.I.R. it can be said that the complainant''s hands were stained, and hence, his complaint being impugned F.I.R. also deserves to be quashed. The Advocate for the petitioners thereafter relying upon the decision in case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, submitted that non-disclosure of pendency of earlier private complaint while lodging of impugned F.I.R. also amounts to committing fraud and as fraud vitiates everything the impugned F.I.R. also stood vitiated on this account, and hence, it should be so declared and quashed. In support of this submission reliance was also placed upon the decision of the Apex Court in case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra and Others,
The learned Advocate for the respondent No. 2 complainant submitted quashing of F.I.R. in exercise of powers under Sec. 482 of Cr.P.C. is in fact rare, and therefore, time and again the Apex Court has in numerous decisions held that quashing of investigation is not to be done without there being strong case of either misuse of process of the Court or complaint revealing no case to be made out against the accused on its plain reading.
The learned Advocate for the respondent No. 2 complainant submitted that in the instant case petitioners have no right to seeking quashing of F.I.R. only on the ground of pendency of Inquiry Case No. 15 of 2002. The learned Advocate for the respondent No. 2 relying upon the decision of the Apex Court in case of M. Krishna Vs. State of Karnataka, submitted that given the facts of a case even two police cases are permitted to be existing with appropriate directions to the investigating agencies.
The learned Advocate for the respondent No. 2 complainant, relying upon decision of the Apex Court in case of Harjinder Singh Vs. State of Punjab and Others, submitted that the concept of double jeopardy as envisaged under Art. 20(2) will have no applicability in the instant case where investigation is yet to collect evidences and file its report.
The learned Advocate for the respondent No. 2 complainant, placing reliance upon the decision in case of R.K. Khanna v. State, 2003 (11) SCC 758 submitted that in a case where the High Court accepted the quashing petition of on the ground that the Magistrate when informed about the investigation failed in staying the complaint case the Apex Court was pleased to hold that in view of Sec. 210(3) High Court committed serious error in quashing the complaint merely because of Magistrate''s failure to stay the complaint case. Thus, in view of Sec. 210 of the Cr.P.C. the impugned F.I.R. need not be quashed.
The learned Advocate for the respondent No. 2 complainant submitted that the Apex Court has held in case of B. Suresh Yadav Vs. Sharifa Bee and Another, that when contrary stand is taken by the party in Civil and Criminal Courts it assumes significance. As in the said case, the complainant was held to have taken contrary stand in Civil Suit than his stand in criminal complaint, and the complaint therein was held liable to be quashed whereas in the case on hand it is rather accused who have taken contrary stand and not the complainant, and hence, the complaint impugned in this petition need not be quashed.
The learned Advocate for the respondent No. 2 complainant relying upon the decision in case of Smt. Chand Dhawan Vs. Jawahar Lal and others, submitted that as allegations made in complaint are matter of proof the material relied upon by the respondent is required to be proved and in such case the complaint cannot be quashed in exercise of powers under Sec. 482 of the Code.
The learned Advocate for the respondent No. 2 complainant relying upon decision in case of Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, submitted that there is marked difference between exercise of powers under Sees. 136 and 202 of the Code. The accused cannot be permitted to submit that investigation needs to be quashed only on account of pendency of the Inquiry Case No. 15 of 2002.
Learned Advocate appearing for respondent No. 2 relying upon the decision in case of Manikandan Vs. Pandian and Others, submitted that this Court may appreciate the grievance of the complainant in its true, perspective and may not quash the F.I.R. in question as the grievance off.-, the complainant is forgery committed by the petitioners which required him to file civil suit also for setting right the wrong perpetrated by the petitioners based upon the forged document.
The learned Advocate for the respondent No. 2 further submitted that criminal act of forgery and its resultant effect necessitate filing of Civil Suit also for nullifying the evil results of forgery but that in itself would not render police complaint vitiated on ground that there exists a civil suit arising out of the action of such forgery.
The learned Advocate for the respondent No. 2 relying upon the decision of the Apex Court in case of Preeti Gupta v. State of Jharkhand, reported in 2010 (3) GLH 258 (SC) : 2010 (4) GLR 3552 (SC) , further submitted that the inherent power of the Court under Sec. 482 of Cr.P.C. should not be exercised to stifle a legitimate prosecution and High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy : more so, when the evidence has not been collected, and therefore, while considering prayers for quashing the complaint the Court need not rely upon the documents produced by the accused unless and until in extraordinary circumstances it is so required. The learned Advocate for the respondent No. 2 also relied upon observation made in Paragraph 12 of the decision of the Apex Court in case of Mahesh Choudhary Vs. State of Rajasthan and Another, in support of his aforesaid submission.
The averments made in the complaint constituting offences are sufficient to invoke the Sections mentioned hereunder, and therefore, appropriate investigation is required to be carried out. The allegations made in the complaint are such as to disclose sufficient material to invoke the Section for constituting the offence alleged. The forgery alleged in respect of the documents dated 24-6-1997 and the signatures on the said documents are alleged to have been forged by the petitioners and when such an allegation is leveled it would be not a case for quashing, as otherwise it would amount to allowing accused to go without investigation and trial.
This Court heard learned Advocates for the parties and perused the documents on record. Before adverting to rival contentions of learned Advocates, it would be most appropriate to set out herein below indisputable aspects emerging there from, namely :
No one has disputed that there existed a document called agreement to sale between original land owners on one side and petitioners as well as respondent No. 2. on other side. The document of agreement to sale is dated 24-6-1997. In that agreement consideration for land in question is determined to be Rs. 17 lakhs and on payment thereof requisite sale-deed was promised to be executed.
The said agreement to sale contains terms and conditions which indicate that Rs. 3 lakhs was received by the owners by way of earnest money, and therefore, that document was also to be considered as receipt of said money. Paragraph No. 1 of the conditions of the agreement to sale contains details with regard to periodical payments in respect of the land in question. Condition No. 2 also contains the condition of liability of interest in case of delay in payment and condition No. 3 indicates the penalty of forfeiture of the amount already paid in case of any default on the part of the purchasers. The payment of entire amount of consideration was to be completed by or before 17-11-1998. The existence of this document is accepted by the petitioners. In other words the veracity thereof is not questioned at any point of time by anyone including the original land owners as well as the petitioners themselves.
The document of agreement to sale and its purport are accepted by the present petitioners. They thereby acknowledge and accept that at least initially in the deal of land in question the complainant was their partner, and thus, he too had equal right in the land in question.
The dates of documents in questions need to be noted. (1) The document of agreement to sale is dated 24-6-1997 which was executed by the petitioners, complainant on one side and the land owners on the other side. (2) The document of relinquishment of rights in the land or partnership dissolution deed purportedly made by the complainant in favour of the petitioner No. 2 a forged document as alleged by the complainant in his complaint, is written on a twenty rupees stamp paper purchased on 4-10-1999, as stamp vendor''s seal affixed thereon, clearly indicates. The writing in that document indicates that it was made on 24-6-1997 i.e. the date on which the agreement to sale itself was executed by the petitioner, complainant and the owners of the land. The said document does not disclose as to what amount is received by the signatory of the dissolution or relinquishment deed in lieu of relinquishment of his rights in the land. (3) The registered sale-deed between petitioners and original land owners is made on 20-3-2001 i.e. after the filing of Civil Suit No. 72 of 2001 filed by the present petitioner No. 1 which was filed on 18-3-2001. This registered sale-deed does not indicate any Agreement to Sale dated 24-6-1997, nor does it reflect the actual consideration of Rs. 17,00,000/- which was agreed sale consideration as mentioned under the agreement to sale dated 24-6-1997 executed by the petitioners, complainant on one side and original owners on the second side. The Sale-deed dated 20-3-2001 indicates that consideration of Rs. 1,00,000 only was agreed and paid by the purchaser which do not reflect the actual consideration of Rs. 17,00,000/-, which the petitioners and land owners had agreed as per the Agreement to Sale document dated 24-6-1997.
The revenue record in Form No. 6 contains note that civil proceedings pending between the parties.
The petitioner No. 1 has filed Regular Civil Suit No. 72 of 2001 in the Court of Civil Judge (S.D.), Surat against the present petitioners and two others for declaration and injunction. This suit is filed on 18-3-2001 i.e. prior to the execution of registered sale-deed dated 20-3-2001. In the plaint, the petitioner No. 1 has nowhere mentioned about petitioner No. 2 as co-owner or co-purchaser nor has he mentioned about the earlier written agreement to sale executed by the petitioner No. 1, No. 2 and complainant on one side and owners of the land on other side on consideration of Rs. 17,00,000/-. The entire plaint is conspicuously silent about petitioner No. 2 who is actually co-purchaser of the land along with the petitioner No. 1 as per the Sale Agreement dated 20-3-2001 and Co-purchaser with complainant and petitioner No. 1 in agreement to sale dated 24-6-1997. The said plaint is also silent in respect of complainant''s alleged relinquishment deed purportedly signed on 24-6-1997 but on the stamp paper purchased on 4-10-1999 for claiming any declaration against the complainant.
The complainant respondent No. 2 hereinabove has also filed Regular Civil Suit No. 196 of 2001 in the Court of Civil Judge (S.D.), Surat against original land owners as well as the present petitioners on 23-5-2001. This plaint reflects all the contents and facts of earlier agreement to sale dated 24-6-1997 between complainant, petitioners on one side and original land owners on the other side. It also reflects the sale consideration of Rs. 17,00,000/- as determined hereunder. The complainant has made clear and unequivocal averment in plaint that the possession of the land was given to him on 17-11-1998 and since then he is in possession of land.
The Civil Court in both the suits ruled in favour of the complainant so far as the possession is concerned, and hence, the interim injunction came to be granted in favour of the complainant.
The petitioner No. 1 even before filing the Regular Civil Suit No. 72 of 2001 had not executed the sale-deed with the original land owners nor did they have any better right or entitlement than the complainant, over the land in dispute.
The complainant respondent No. 2 in Regular Civil Suit No. 196 of 2001 in the Court of Civil Judge (S.D.) against the present petitioners as well as original owners relying upon the agreement to sale and averred therein that his share of consideration had already been paid and he was enjoying the land in question and it was an attempt on their part in of depriving the complainant of his legitimate right and interest in the property. He also sought, therefore, permanent injunction and declaration and prayed that he may not be dislodged from the possession without due process of law.
This complainant filed this suit on 23-5-2001. There were orders made by the trial Court on Exh. 5 application by the petitioners in Regular Civil Suit No. 72 of 2001 which came to be rejected vide order dated 8-8-2007 and Exh. 5 application made by complainant No. 2 in Regular Civil Suit No. 196 of 2001 came to be allowed and injunction was granted against defendants i.e. present petitioners restraining them from disturbing the possession of the complainant. This order was also made on same date i.e. 8-8-2007 in both the suits. Being aggrieved and dissatisfied with these two orders present petitioners filed Appeal From Order No. 311 of 2007 and Special Civil Application No. 2230 of 2007. Appeal From Order was filed by original defendant Nos. 3 and 4 of Regular Civil Suit No. 196 of 2001 i. e. present petitioners for quashing and setting aside the order passed below Exh. 5 dated 8-8-2007 in allowing the said application and Special Civil Application No. 22300 of 2007 was filed by petitioner - original plaintiff who is appellant No. 1 in Appeal From Order No. 311 of 2007 under Art. 227 of the Constitution of India for quashing and setting aside the order dated 8-8-2007 passed below Exh. 7 in Regular Civil Suit No. 72 of 2001. Thus, both the proceedings came to be filed by the petitioner.
This Court (Coram : M. R. Shah, J.) on 21-8-2008 while dismissing the appeal made certain observations which are required to be set out as under :
...This Court has also considered the document prosecuted at Mark 112/ 1 with respect to alleged relinquishment of right by the plaintiff. Said document is on the stamp paper of 4-10-1999 and the contents mention that same is executed on 24-6-1997. It is mentioned in the said document that "I Vajubhai Somabhai Bariya today dated 24-6-1997 on getting amount of 25% share relief, transfer his right with respect to land bearing Survey No. 189. Block No. 118 admeasuring 1,740 m. in favour of his partner Daveshibhai Vasrambhai Desai". There cannot be writing of 24-6-1997 on the stamp paper of 4-10.-1999. Thus, prima facie it appears that said document relied upon by the appellants more particularly appellant No. 1 with respect to alleged relinquishment of right by original plaintiff is forged and concocted and/or is not reliable and does not inspire any confidence.
...Considering said document dated 1-9-2000 first of all it cannot be said to be sale-deed. At the most, it can be said to be agreement to sale only executed by original land owners. Even on considering said document, it does not specifically mention payment of sale consideration. In Clause 1, it is mentioned that the amount as determined with respect to sale consideration between first party and second party has been paid in cash. However, nowhere it is mentioned what amount is paid and what is sale consideration. Said document also does not inspire any confidence. As stated above, it cannot be said to be sale-deed at all, and therefore, on the basis of same, it cannot be said that appellant No. 1 of Appeal From Order has become absolute owner on the basis of said document.
...For the reasons stated above, both Appeal From Order and Special Civil Application deserve to be dismissed, and accordingly, they are dismissed. In view of dismissal of Appeal From Order, no order in Civil Application.
The respondent No. 2 appears to have filed private criminal complaint also, being Inquiry Case No. 15 of 2002 against as many as seven persons, including present petitioners and learned Magistrate had ordered inquiry there under Sec. 202 of Criminal Procedure Code. In this complaint, in Paragraph No. 8 the complainant has clearly mentioned that he had submitted one written complaint to Katargam Police Station on 21-5-2001 with copy to the Commissioner of Police but no action was taken thereon. The complaint that he also informed the District Collector about this kind of fraud and requested him not to take any mutation on that basis. The learned Magistrate, on 4-10-2002 ordered an inquiry under Sec. 202 of the Code and asked the concerned to submit report within 30 days thereof.
The concerned police officer has on 30-10-2003 submitted his report along with statements recorded. Its awaiting further action at end of the learned Magistrate.
In the year 2010, the complainant lodged police complaint in detail narrating all these facts, including civil proceedings. However, reading of the complaint does not disclose that the complainant disclosed filing of earlier criminal case before learned Magistrate in the form of private complaint being Inquiry Case No. 15 of 2002.
Against the aforesaid backdrop of indisputable facts, the Court is called upon to examine as to whether the complaint in question can be said to be an abuse of process of Court so as to award its quashment in exercise of power under Sec. 482 Cr.P.C. The Court needs to be mindful of the fact that Sec. 482 Cr.P.C. and the development of law on its applicability to and Courts jurisdiction hereunder would persuade the Court to exercise it very sparingly and only in appropriate cases. The proceedings of such nature are ordinarily not quashed.
It may be recorded here that it is not the case of the petitioners that the impugned F.I.R. is required to be quashed as it pertains to civil dispute only, nor is it the case of the petitioners that the impugned F.I.R. is required to be quashed as it does not disclose any allegation so as to rope in them in the commission of alleged offence. The petitioners have not disputed that the impugned F.I.R. do not disclose commission of any offence. They have rather assailed it on the ground of it being false and lodged for exerting undue pressure upon them. Thus, so far as the ground of falsity is concerned it being matter of evidence no Court in exercise of power under Sec. 482 of the Code can go into it and decide at this stage. The allegation and counter-allegations are to be tested and tried in criminal trial on the basis of evidences available and its correct appreciation.
When the criminal complaint, containing all the requisite averments sufficient to disclose commission of an offence under the provisions invoked, is sought to be quashed on counter-allegations of mala fide lodgment of complaint and on the ground of abuse of process, it calls for greater care and close scrutiny so as ensure that in attempt to save accused from misuse of process of Court in exercise of power under Sec. 482 of the Code the legitimate process of investigation might not get stifled, which would be counter-productive to the very purpose for which said power is vested in the Court.
The contentions of the petitioners are, therefore, required to be examined in light of the aforesaid proposition.
The ground of delay in lodging of impugned F.I.R. if examined closely would show that in fact lodgment of F.I.R. cannot be said to be an afterthought on the part of the complainant. The complainant as per his say was in possession of the property in question on account of the document called agreement to sale originally entered into between the original land owners and complainant with his fellow partners i.e. the present petitioners. It was only when he was confronted with the document of relinquishment of his right in the property in proceedings for dispossessing him that he was alarmed and was constrained to file private complaint being Inquiry Case No. 15 of 2002 in the Court of the competent Magistrate against all the persons including the original owners and the present petitioners. That complaint is not said to be filed belatedly. The petitioners, therefore, cannot be justified in submitting that the impugned F.I.R. needs to be quashed on account of inordinate delay in filing the same. The decision of the Apex Court in case of Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, cited by the Advocate of the petitioners also does not support any blank proposition as sought to be canvassed on behalf of the petitioners that delay in filing of complaint defeats it. The relevant observations of the Apex Court with few facts of that case would certainly show that the said judgment is of no avail to the petitioners. The Apex Court in the case observed as under :
In view of the above, the judgment and order of the High Court dated 13-2-2009 is not sustainable in the eye of law, and is liable to be set aside. However, the facts and circumstances of the case do not warrant so. The agreement to sell in favour of the appellants'' father is dated 22-10-1988 and sale-deed was to be executed and registered by 15-6-1989. The respondent Nos. 1 to 4 filed Civil Suit No. 60 of 1989 in 1989. It is difficult to believe that the appellants'' father was not aware of the pendency of that suit. No explanation has been furnished as to why after expiry of the date of execution of the sale-deed in favour of Kishan Singh, i.e. 15-6-1989, the appellants father did not file the suit for specific performance which was subsequently filed on 6-2-1996 as Civil Suit No. 81 of 1996. Even if it is presumed that Kishan Singh was not aware of pendency of suit filed by the respondent Nos. 1 to 4, no explanation could be furnished that in case, the appellants'' father filed another Suit No. 1075 of 1996 for setting aside the decree dated 8-5-1996 in Civil Suit No. 60 of 1989, why did he wait till the decision of that suit for lodging F.I.R., as the civil and criminal proceedings could have proceeded simultaneously. The F.I.R. has been filed only on 23-7-2002 i.e. after filing the R.F.A. No. 2488 of 2002 before the High Court on 15-7-2002. Therefore, there is an inordinate delay on the part of the appellants'' father in filing the F.I.R. and there is no explanation whatsoever for the same.
(Emphasis supplied)
Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the F.I.R., the complainant must give explanation for the same. Undoubtedly, delay in lodging the F.I.R. does not make the complainant''s case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal, (vide : Sahib Singh Vs. State of Haryana,
In cases where there is a delay in lodging a F.I.R., the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a colored version of events. In such cases, the Court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the Criminal Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where a F.I.R. is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the Court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case, (vide : Chandrapal Singh and Others Vs. Maharaj Singh and Another, ; State of Haryana and others Vs. Ch. Bhajan Lal and others, G. Sagar Suri and Another Vs. State of U.P. and Others, and Gorige Pentaiah Vs. State of A.P. and Others,
The case before us relates to a question of the genuineness of the agreement to sell dated 4-1-1988. The said agreement was between Kishori Lal and respondents and according to the terms of the said agreement, the sale-deed was to be executed by 10-6-1989. As the sale-deed was not executed within the said time, suit for specific performance was filed by the other party in 1989 which was decreed in 1996. So far as the present appellants are concerned, agreement to sell dated 22-10-1988 was executed in favour of their father and the sale-deed was to be executed by 15-6-1989. No action was taken till 1996 for non-execution of the sale-deed. The appellants'' father approached the Court after 7 years by filing Suit No. 81 of 1996 for specific performance. However, by that time, the suit filed by the present respondents stood decreed. The appellants'' father filed another Suit No. 1075 of 1996 for setting aside the judgment and decree passed in favour of the respondents 1 to 4. The said suit was dismissed by the Additional District Judge (Senior Division), Khanna on 10-6-2002. Subsequently, the appellants preferred R.F.A. No. 2488 of 2002 on 15-7-2002 against the aforesaid order, and the said appeal is still pending before the Punjab and Haryana High Court.
It is to be noted that the appellants'' father Kishan Singh lodged F.I.R. No. 144 of 2002 on 23-7-2002 through his attorney Jaswant Singh Mann under Secs. 420, 323, 467, 468, 471, 120B, I.P.C., against the respondents. The allegations made in the F.I.R. were substantially similar to the allegations made by the appellants in Civil Suit No. 1075 of 1996, which had been decided against them. It is evident that the aforesaid F.I.R. was filed with inordinate delay, and there has been no plausible explanation for the same. The appellants lodged the aforesaid F.I.R. only after meeting their Waterloo in the Civil Court. Thus, it is evident that the F.I.R. was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants'' father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law.
In view of the above, and to do substantial justice, we are not inclined to interfere with the order passed by the High Court quashing the criminal proceedings against the respondents in spite of the fact that the impugned judgment dated 13-2-2009 passed in Misc. Criminal No. 4136 of 2003 is not sustainable in the eye of law.
With these observations, the appeal stands disposed of.
Thus, the delay which is unexplained and is indicative of ulterior purpose only would have adverse effect upon the complaint. In the instant case, as could be seen from the facts the complainant is in fact pursuing his remedy right from the day he came to know that his interest in the subject land is jeopardized, and therefore, it cannot be said that date of F.I.R. is the only date which should be reckoned for counting delay. Besides it may be noted that the complainant has in fact pronouncement of finding in his favour from all the three Courts so far as civil litigation is concerned, and hence, it cannot be said that the F.I.R. is filed out of any frustration as it happened in the case cited hereinabove. Thus, I am of the view that the lodgment of F.I.R. cannot be said to be in any manner vitiated on account of delay as alleged by the petitioners so as to warrant its quashing on the same ground.
The petitioners'' contention that filing of impugned F.I.R. was vitiated as it was filed without disclosing of complainant''s filing earlier criminal case in form of private complaint being Inquiry Case No. 15 of 2002 is also without any substance. The petitioners have attempted to equate first information under Sec. 154 of Cr.P.C. to the complaint or plaint filed before the Court of law for making their stand good in respect of non-disclosure of filing earlier private complaint being Inquiry Case No. 15 of 2000 in the F.I.R. and submitted that this so-called suppression amounts vitiating the F.I.R. warranting its quashing. The decisions cited in cases of Zandu Pharmaceutical, S.P. Chengalvaryiava Naidu and Dagdu (supra) do not support this proposition on the contrary as these facts revealed they are all decisions pertain to Court and Court proceedings only. The Police complaint being merely a first information to be given by any one for bringing criminal machinery into motion in respect of disclosure of commission of cognizable offence. The complaint in form of information given by anyone need not pass the test prescribed for complaint made to learned Magistrate or Court which essentially backed by verification of the complainant. The Court need not elaborately dwell upon this submission suffice it to say that impugned F.I.R. need not be quashed on the ground that complainant did not disclose filing of earlier private complaint therein. It is all the more so as by nondisclosure of earlier private complaint in F.I.R., the complainant has not gained any wrongful advantage nor has the non-disclosure deprived the petitioners of any rightful and legitimate benefit nor would have, the disclosure of filing of earlier complaint, rendered the F.I.R. nullity as looking to the catena of decisions of the Apex Court when someone informs the concerned police station officer about commission of cognizable offence he is under duty to reduce it into writing and register F.I.R.
The contention of the petitioners that provisions of Sec. 210 of the Code would also not help the complainant in saving the F.I.R. is also bereft of merits and deserves rejection. Let us examine ratio of the decision cited by the Advocate for the petitioners in light of their facts and see as to whether they have any applicability to the facts of instant case. The first case relied upon in this behalf is decision in case of Sankaran Moitra (supra) especially observation of the minority view for scope of Sec. 210 of the Code. The second case relied upon is the case of Nanuram from Rajasthan High Court where the facts indicate that it pertained to filing of private criminal complaint on facts whereon earlier the Court had taken cognizance based upon the earlier police report, and therefore, the Court observed that Sec. 210 did not apply. The third decision is of Orissa High Court in case of Banchhanidhi (supra) wherein the Court following Paragraph would show the facts and law applied in the case :
Where the F.I.R. was lodged by the prosecution party alleging certain overt acts against accused persons and C.J.M. has taken cognizance of the offence on basis of final police report in the matter but in the meantime complaint case was also filed by the informant for the same offence, cognizance of which was taken by the C.J.M., provisions of Sec. 210 would not be applicable since by the time complaint case was instituted, the charge-sheet in the case instituted on police report had already been submitted and no police investigation was in progress in relation to the said offence at that point of time. Therefore, clubbing of both these cases would be impermissible.
As against these the learned Advocate for the respondent has relied upon the decision of the Apex Court in case of Dilawar Singh v. State q) Delhi (supra) wherein the Apex Court has held and observed as under :
Section 156 falling within Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Sec. 202 contained in Chapter XV is different from the investigation contemplated under Sec. 156 of the Cr.P.C.
Chapter XII of the Cr.P.C. contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Sec. 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. Sec. 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Sec. 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct ah investigation by a police officer". But the investigation envisaged in Sec. 202 is different from the investigation contemplated in Sec. 156 of the Cr.P.C.
The various steps to be adopted for investigation under Sec. 156 of the Cr.P.C. have been elaborated in Chapter XII of the Cr.P.C. 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 Sec. 173 of the Cr.P.C. 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 Sec. 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Sec. 173 of the Cr.P.C. 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.
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 Cr.P.C. A reading of Sec. 202(1) of the Cr.P.C. 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 Sec. 202(1) i.e. 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.
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.
The clear position, therefore, is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Sec. 156(3) of Cr.P.C. 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 a F.I.R. There is nothing illegal in doing so. After all, registration of a F.I.R. 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 Sec. 154 of Cr.P.C. Even if a Magistrate does not say in so many words while directing investigation under Sec. 156(3) of the Cr.P.C. that an F.I.R. should be registered, it is the duty of the officer-in-charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C. only thereafter.
The above position was highlighted in Suresh Chand Jain v. State of M. P., 2001 (2) SCC 628.
In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, it was observed as follows :
When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Sec. 156(3) of the Cr.P.C. to the officer-in-charge of Police Station, Gauhati for investigation. Sec. 156(3) states "Any Magistrate empowered under Sec. 190 may order such investigation as above-mentioned". Mr. Thomas was certainly a Magistrate empowered to take cognizance under Sec. 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sees. 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Cr.P.C. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him/, because Sec. 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Sec. 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ''may'' in Sec. 190 to mean ''must''. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Sec. 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so, then he would have to proceed in the manner provided by Chapter XVI of the Cr.P.C. Numerous cases were cited before us in support Of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by "taking cognizance". It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in. the case of Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee,
What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Sec. 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Sec. 200, and thereafter, sending it for inquiry and report under Sec. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Sec. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." were approved by this Court in R.R. Chari Vs. The State of Uttar Pradesh, It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various Sections of Chapter XVI but for taking action of some other kind, e.g., ordering investigation under Sec. 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above-referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, It will be clear, therefore, that in the present case neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Sec. 156(3) of the Cr.P.C. The action of Mr. Thomas comes within the observations of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellants has any substance.
In Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, it was observed as under :
On 19-9-1952, the appellant appeared before the Additional District Magistrate who recorded the following order :
He is to give bail of Rs. 50,000/- with ten sureties of Rs. 5,000/- each. Seen police report. Time allowed till 19th November, 1952, for completing investigation.
On 19-11-1952, on perusal of the police report the Magistrate allowed further time for investigation until January 2, 1953, and on that date time was further extended to February 2, 1953. In the meantime, on January 27, 1953, Inspector Mitra had been authorized under Sec. 23(3)(b) of the Foreign Exchange Regulation Act to file a complaint. Accordingly, a complaint was filed on February 2, 1953. The Additional District Magistrate thereon recorded the following order :
Seen the complaint filed today against the accused Narayandas Bhagwandas Madhavdas under Sec. 8(2) of the Foreign Exchange Regulation Act read with Sec. 23B thereof read with Sec. 19 of the Sea Customs Act and Notification No. F.E.R.A. 105 of 1951 dated the 27th February, 1951, as amended, issued by the Reserve Bank of India under Sec. 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri M. H. Sinha, S.D.M. (Sadar), Magistrate 1st Class (Spl. empowered) for favour of disposal according to law. Accused to appear before him.
Accordingly, on the same date Mr. Sinha then recorded the following order :
Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs. 25,000/- with 5 sureties.
To 26-3-1952 and 27-3-1952 for evidence.
It is clear from these orders that on 19-9-1952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till November 19, 1952, for completing the investigation. By his subsequent orders time for investigation was further extended until February 2, 1953. On what date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to Mr. Sinha. It would also appear from the order of Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27th of March, for evidence. It was, however, argued that when Mitra applied for a search warrant on September, 16, 1952, the Additional District Magistrate had recorded an order thereon, "Permitted. Issue search warrant." It was on this date that the Additional District Magistrate took cognizance of the offence. We cannot agree with this submission because the petition of Inspector Mitra clearly states that "As this is non-cognizable offence, I pray that you will kindly permit me to investigate the case under Sec. 155, Cr.P.C," That is to say, that the Additional District Magistrate was not being asked to take cognizance of the offence. He was merely requested to grant permission to the police officer to investigate a non-cognizable offence. The petition requesting the Additional District Magistrate to issue a warrant of arrest and his order directing the issue of such a warrant cannot also be regarded as orders which indicate that the Additional District Magistrate thereby took cognizance of the offence. It was clearly stated in the petition that for the purposes of investigation his presence was necessary. The step taken by Inspector Mitra was merely a step in the investigation of the case. He had not himself the power to make an arrest having regard to the provisions of Sec. 155(3) of the Code of Criminal Procedure. In order to facilitate his investigation it was necessary for him to arrest the appellant and that he could not do without a warrant of arrest from the Additional District Magistrate. As already stated, the order of the Additional District Magistrate of September 19, 1952, makes it quite clear that he was still regarding the matter as one under investigation. It could not be said with any good reason that the Additional District Magistrate had either on September 16, or at any subsequent date up to February 2, 1953, applied his mind to the case with a view to issuing a process against the appellant. The appellant had appeared before the Magistrate on February 2, 1953, and the question of issuing summons to him did not arise. The Additional District Magistrate, however, must be regarded as having taken cognizance on this date because he sent the case to Mr. Sinha for trial. There was no legal bar to the Additional District Magistrate taking cognizance of the offence on February 2, 1953, as on that date Inspector Mitra''s complaint was one which he was authorized to make by the Reserve Bank under Sec. 23(3)(b) of the Foreign Exchange Regulation Act. It is thus clear to us that on a proper reading of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until February 2, 1953. The argument that he took cognizance of the offence on September 16, 1952, is without foundation. The orders passed by the Additional District Magistrate on September 16, 1952, September 19, 1952, November 19, 1952, and January 2, 1953, were orders passed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of Sec. 169 of the Cr.P.C. released him on his executing a bond with or without sureties to appear if and when so required before the Additional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as required by Sec. 23(3)(b) of the Foreign Exchange Regulation Act. It is only at this stage that the Additional District Magistrate would be called upon to make up his mind whether he would take cognizance of the offence. If the complaint was filed with the authority of the Reserve Bank, as aforesaid, there would be no legal bar to the Magistrate taking cognizance. On the other hand, if there was no proper authorization to file the complaint as required by Sec. 23 the Magistrate concerned would be prohibited from taking cognizance. In the present case, as the requisite authority had been granted by the Reserve Bank on January 27, 1953, to file a complaint, the complaint filed on February 2, was one which complied with the provisions of Sec. 23 of the Foreign Exchange Regulation Act and the Additional District Magistrate could take cognizance of the offence, which indeed, he did on that date. The following observation by Das Gupta, J., in the case of S Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, was approved by this Court in the case of R.R. Chari Vs. The State of Uttar Pradesh,
What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Sec. 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Sec. 200, and thereafter, sending it for inquiry and report under Sec. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Sec. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
It is, however, argued that in Chad''s case, this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference. It is the principle which was enunciated by Das Gupta, J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of preceding under Sec. 200 and subsequent Sections of Chapter XVI of the Code of Criminal Procedure or under Sec. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind, and therefore, had taken cognizance.
These aspects were highlighted in Mohd. Yousuf Vs. Smt. Afaq Jahan and Another,
Thus, from the aforesaid it becomes clear that no proposition of law as sought to be canvassed by the learned Advocate for the petitioner could be culled from the ratio of the decisions cited hereinabove. In my view the legislative intent of Sec. 210 of the Code is to give full scope to police investigation without undue haste in proceedings with the private complaint as the investigation on police complaint under Sec. 154 and inquiry under Sec. 202 have basic and inherent scope and are applicable in given facts and circumstances only. In view of this, I think impugned F.I.R. need not be quashed only on the ground that earlier private complaint being Inquiry Case No. 15 of 2002 is pending, in fact that rather is required to be stayed by the learned Magistrate and he should await the police report that may be filed after investigation.
The contention of the petitioners that impugned F.I.R. being subsequent to filing of the private complaint is hit by vices of "Second F.I.R." and as such in light of the decision of Apex Court in case of Antony (supra) it cannot be permitted to be proceeded and culminated into investigation also being bereft of merits deserves rejection for the following reasons. The private complaint being Criminal Inquiry Case No. 15 of 2002 cannot be said to be F.I.R. registered under Sec. 154 of the Code, nor could be said to be an inquiry or investigation ordered by the learned Magistrate in exercise of powers conferred upon him in Sec. 156(3) of the Code. Therefore, the said inquiry ordered under Sec. 202 of the Code cannot be equated with "Investigation" as envisaged under Chapter 12 of the Code which clothes the Investigating Officer with certain statutory powers which are not available to Inquiry Officer conducting an inquiry under order of Magistrate made under Sec. 202 of the Code. The difference between the "inquiry" under Sec. 202 of the Code and "investigation" under Sec. 154 hardly needs special emphasis. In the case of Antony (supra) it was clearly a case of filing or registering two First Information Reports, and therefore, the observations made hereunder would not be of any avail to the present petitioners. Besides the provisions of Sec. 210 of the Code and its discussion hereinabove makes it clear that the impugned F.I.R. need not be quashed merely on the ground that mere exist private complaint in form of Inquiry Case No. 15 of 2002.
This brings the Court to examine the contention as to whether the impugned F.I.R. could be said to be an excuse for exerting undue pressure upon the petitioners. The petitioners have not taken consistent stand before the Court wherein the Civil Suits are pending. The glaring facts narrated hereinabove indicate that in such a situation criminal investigation by the competent officer in light of provisions of Chapter 12 is very essential or else truth would not surface. In my view, the filing of F.I.R. is not delayed as it its sought to be projected by the petitioner, nor is it required to be quashed on the ground of earlier private complaint, nor could it be said to be an abuse of process of Court as in such a case the Magistrate needs to await the final outcome of the Investigation undertaken pursuant to the F.I.R. in question.
Therefore, in my view the petition being bereft of merits deserves to be dismissed and is accordingly dismissed. Rule discharged. Interim relief stand vacated.