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M. Sejappa Madimallappa Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Petn. No. 187 of 1965
Judge
Reported inAIR1966Mys152; 1966CriLJ677
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 561-A; Mysore Co-operative Societies Act - Secon 71; Co-operative Societies Act - Sections 70
AppellantM. Sejappa Madimallappa
RespondentState of Mysore and anr.
Excerpt:
.....its accounts and other relevant documents - such documents should be taken into consideration by police during investigation - court ordered further investigation into matter. held see paras 9 and 10. - karnataka stamp act, 1957.[k.a. no. 34/1957]. section 2(e) & 2 (mn): [h.v.g. ramesh, j] duly stamped & market value held, when the words duly stamped and market value are clearly explained in the act and based on that if the registering authority comes to a conclusion as to what would be the proper market value and accordingly insists on the party to make such payment and on such payment, registers the document, the same would not in any way come in the way of the right of the party much less it can be treated as it is in violation of the provisions of the registration act . on..........could under s. 561-a exercise its inherent power with respect to an investigation commenced by the police. that power is always exercisable where there is a misuse of power by the police or there is the commencement of an investigation without the requisite authority and the court considers it necessary to exercise its inherent power to secure the ends of justice. (8) so we proceed to consider the question whether this is a case in which we could or should exercise that power. it is obvious that we should not say anything on the merits of the contention placed before us by mr. naik as to the jurisdiction of the criminal court to try an offence of misappropriation having regard to the provisions of s. 70 of the co-operative societies act. it would be open to the petitioner, if that stage.....
Judgment:

Somnath Iyer, J.

(1) This is an application presented under S. 561-A of the Code of Criminal Procedure by a certain Sejjappa who at one stage, was employed as purchase assistant by the Mysore State Woollen Handloom Co-operative Society, Limited. At a particular stage, the petitioner was placed under suspension by the Secretary of that society. But that order of suspension was set aside by the arbitrator to whom the dispute was referred under S. 71 of the Mysore Co-operative Societies Act. There were allegations against the petitioner that he had committed an offence of misappropriation. There were also counter allegations by the petitioner that a large sum of money was due to him towards salary and other amounts. The arbitrator found on all these questions in favour of the petitioner and set aside the order of suspension. There was an appeal preferred by the society to the Revenue Appellate Tribunal, which was dismissed.

(2) Thereafter, an investigation was started by the concerned police authorities into a complaint made by the society against the petitioner that he had committed an offence of misappropriation of Rs. 7123-71 paise. Mr. Mariappa appearing for the society even before the award was made by the arbitrator. Mr. Naik appearing for the petitioner does not admit it.

(3) However that may be, what should be observed, is, that investigation which was commenced after the tribunal disposed of the appeal preferred by the society, has not yet been completed. It is during the progress of that investigation that the petitioner has made this application to us under S. 561-A of the Code of Criminal Procedure, for an order stopping the investigation and forbidding its continuance.

(4) The ground on which out inherent powers are invoked in that way is three fold. It was first said that the provisions of S. 70 of the Co-operative Societies Act which creates exclusive jurisdiction only in some tribunals to make an adjudication on a dispute like the one which the police arbitration now investigating, divests all other Courts of the power to make such adjudication and that in consequence the investigation now made by the police with a view to place a charge sheet against the petitioner if found necessary, has to be stopped. We are asked to say so since according to Mr. Naik the criminal Court would have no jurisdiction to try the offence of misappropriation with which the petitioner is charged, since that charge involves a dispute on which the criminal Court has no power to make an adjudication. It was next said that the investigation is in the nature of prosecution or harassment to which the petitioner is being subjected by persons who are not well disposed towards him, and, who felt chagrined with the order made by the Tribunal dismissing the appeal preferred by the society. It was lastly contended that there were really no materials before the police on the basis of which they could have believed that any cognizable crime had been committed and that, therefore, it would be proper for us to stop the investigation to secure the ends of justice.

(5) Mr. Mariappa appearing for the society informs us that although the arbitrator did say in his award that the charge of misappropriation against the petitioner was not established and that the petitioner himself was entitled to receive his salary and other amounts from the society as claimed by him, the tribunal in its order in effect vacated those findings of the arbitrator pointing out that those findings had no legal effect since the issues so dealt with by the arbitrator did not arise in the case. Mr. Naik on the other hand contends that since the appeal was dismissed by the tribunal and since the order of suspension made by the secretary of the society was set aside by the arbitrator and that part of the order of the arbitrator was confirmed by the tribunal, there was no point in the society raising a contention that notwithstanding the finding of the arbitrator that there was no misappropriation, some act of misappropriation had actually been committed. He contended that the police could not ignore the finding reached by the arbitrator on a consideration of all the materials before him, that there was no misappropriation and that the police could not mechanically start an investigation on an allegation made by the society that there was an act of misappropriation which was negatived by the arbitrator.

(6) Mr. Ramachandra Rao, the learned Government pleader to whom notice was issued in this petition has made the submission that our power under S. 561-A of the Code of Criminal Procedure could not be invoked in a matter like this and that it is not within our jurisdiction to stop the investigation which is now going on or to quash the investigation already made.

(7) It does not appear to us that the decision of the Privy Council in Emperor v. Nazir Ahmad , can support the proposition placed before us by Mr. Government Pleader that in no case could we stop the investigation commenced by the police. The amplitude of our power under S. 561-A is wide enough us in a proper case to stop the investigation which should never have commenced or to make which there is no power under the Code of Criminal Procedure. This view which we take receives support from what Lord Porter said in Nazir Ahmad's case, AIR 1945 PC 18 He said thus:

'No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam J. may well have decided rightly in Chidambaram Chettiar v. Shanmugham Pillai, AIR 1938 Mad 129.'

The enumeration made by the noble Lord as to the category of cases in which the police would have no authority to undertake an investigation is of course not exhaustive. Likewise it would be neither necessary nor possible to make an enumeration of all those cases in which this Court could under S. 561-A exercise its inherent power with respect to an investigation commenced by the police. That power is always exercisable where there is a misuse of power by the police or there is the commencement of an investigation without the requisite authority and the Court considers it necessary to exercise its inherent power to secure the ends of justice.

(8) So we proceed to consider the question whether this is a case in which we could or should exercise that power. It is obvious that we should not say anything on the merits of the contention placed before us by Mr. Naik as to the jurisdiction of the criminal Court to try an offence of misappropriation having regard to the provisions of S. 70 of the Co-operative Societies Act. It would be open to the petitioner, if that stage is at all reached to object to the jurisdiction of the criminal Court if he is so advised. But the possibility of the success of that contention is not what could persuade us to say that we should stop the investigation at this stage.

(9) In regard to the other twin submissions, both of which pertain to the sustainability of the complaint of misappropriation, we should only say that the police authorities who are now making an investigation can be trusted to make a fair and impartial investigation with that objectivity which is expected of them. Mr. Naik, in our opinion, is right in making a submission that the investigation should not overlook any salient factor which has any manner of bearing on it. If Mr. Naik's complaint that the Society has suppressed accounts and has refused to produce them is well founded, it becomes plain that that is one of the circumstances which the police that that is one of the circumstances which the police have to consider before they embark upon the presentation of charge-sheet. The commission of an offence of misappropriation with which the petitioner is charges, is disclosed only if the society produces its accounts and every other relevant document which go to support the charge of misappropriation. The accounts maintained by the society constitute by far the most important if not the best material, which could assist a conclusion whether a cognizable crime has or has not been committed. That the arbitrator did pronounce in favour of the petitioner on the question whether there was any misappropriation would also be of assistance to the police, if that finding is otherwise relevant, although the Tribunal did not consider that finding as one really necessary for the disposal of the case.

(10) All these are matters which should be taken into consideration by the police as aids of the investigation which they are now making, and the petitioner could surely assist the investigation in his own way by placing before the police all those materials on which he depends in exoneration.

(11) Since we do not doubt that the investigation will be made according to law and in a fair and impartial manner without its deflection by anything done by one, it is not necessary to say anything at this stage in this petition except to observe that we do not feel persuaded at this stage of the investigation to direct as discontinuance. What we have said so far disposes of this petition.

(12) Before concluding it becomes necessary to notice a submission made by Mr. Naik that the society, notwithstanding the clear order of the Tribunal and the arbitrator, has made no payment of the salary and the other amounts found due to the petitioner. Mr. Mariappa tells us that he is not aware whether those amounts have been paid or not. If what is due to the petitioner has not been paid it would be a surprising thing, and, if the society continues to neglect payment of those amounts the petitioner has his own remedies such as the presentation of a suitable and proper application to the appropriate forum for the issue of a direction to the society for implementation of the order made by the tribunal. It is, however, to be hoped that the society will not drive the petitioner to have resort to any such step. Beyond stating this, we cannot do anything about it in this application.

(13) Order accordingly


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