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Krishna Kumar Sharma and anr. Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Misc Application No. 51/78
Judge
Reported in1978WLN(UC)466
AppellantKrishna Kumar Sharma and anr.
RespondentThe State of Rajasthan and anr.
DispositionApplication dismissed
Cases ReferredJehansingh v. Delhi Administration
Excerpt:
.....from the court, the fact that they were required by the bombay high court to appear before the learned magistrate at bharatpur on april 3, 1978. they mode a false allegation that criminal case no. 170 of 1977 is pending before the learned magistrate bharatpur. their application under section 482 of the code deserves dismissal on these grounds alone.;(b) constitution of india - article 226 and criminal procedure code section 482--proceedings at investigation stage--held, powers under section 482 not to be exercised--jurisdiction under article 226 can be invoked in appropriate cases.;there is no judicial proceeding of any kind pending in the court of the judicial magistrate, first class, bharatpur in respect of which this court could possibly exercise its inherent jurisdiction under..........sections 120b and 420 of the indian penal code and praying they be punished accordingly. the learned magistrate forwarded this complaint to the officer-in-charge, kotwali police station, bharatpur, with an order directing the said officer to register the case, as, in the opinion of the learned magistrate, it disclosed a cognizable offence. the learned magistrate further directed the said officer-in-charge to make investigation according to law. he made it clear in his order that he himself did not take cognizance because the offence being cognizable, he was directing investigation into it accordance with the provisions of section 156(3) of code.3. the kotwali police, bharatpur, registered a formal first information report (fir no. 120 of 1977) on the basis of the said complaint.....
Judgment:

K.S. Sidhu, J.

1. This order will deal with an application under Section 482 of the Code of Criminal Procedure, 1973, for short, (the Code), which was filed in the following circumstances.

2. Krishna Kumar Sharma and Basant Kumar Sharma, petitioners herein, are Managing Director and Executive Director, respectively, of M/s Srarit Water Treatment Company Limited, Bombay. P.N. Vijai, respondent 2 herein, is Administrative Officer of General Engineering Works, Bharatpur Rajasthan. On April 18, 1977, P.N. Vijai made a complaint in writing to the Judicial Magistrate, First Class, Bharatpur, alleging that the petitioners had committed offences against Sections 120B and 420 of the Indian Penal Code and praying they be punished accordingly. The learned Magistrate forwarded this complaint to the Officer-in-Charge, Kotwali Police Station, Bharatpur, with an order directing the said officer to register the case, as, in the opinion of the learned Magistrate, it disclosed a cognizable offence. The learned Magistrate further directed the said officer-in-charge to make investigation according to law. He made it clear in his order that he himself did not take cognizance because the offence being cognizable, he was directing investigation into it accordance with the provisions of Section 156(3) of Code.

3. The Kotwali Police, Bharatpur, registered a formal first information report (FIR No. 120 of 1977) on the basis of the said complaint making an endorsement there on by way of 'Karwahi police' that the complaint disclosed an offence only against Section 420 Indian Penal Code. The police were apparently not satisfied from the complaint that an accusation of an off nee against Section 120B of the Indian Penal Code was disclosed therein. They did not therefore, find it fit to register any case under Section 120B IPC. The police forwarded a copy of this FIR to the Magistrate concerned. The learned Magistrate received the copy on April 13, 1977. He filed the same with an endorsement of even dated directing that the same would be put up before him along with the police report under Section 173 of the Code.

4. The case remained under investigation of the Bharatpur police from April, 1977 to January, 1978 It still remains at the stage of the investigation of January 6, 1978, the Investigating Officer, applied to the learned Magistrate, Bharatpur, for issue of warrants of arrest of the petitioners, stating that an offence against Section 420 IPC was made out and that since the petitioners were residing in Bombay, warrants were needed so that they could be arrested and there after police report under Section 173 of the Code could be forwarded to the court according to law. The learned Magistrate issued the warrants as prayed The Bharatpur police went to Bombay for the execution of the warrants. Meanwhile, the petitioners had obtained orders of anticipatory bail from the High Court of Judicature at Bombay on March 13, 1978. The High Court directed the petitioners to appear before the Judicial Magistrate, first class Bharatpur on April 3, 1978.

5. On March 30, 1978 the petitioner made the present application to this Court, purporting to do so under Section 482 of the Code, praying that, as they put it, 'the proceedings before the Judicial Magistrate first class, Bharat pur in criminal case No. 120/77 against the petitioners be quashed and set aside. This Court passed an order, dated, March 31, 1978, directing issue of notice to the respondents and summoning the record. A perusal of the record received from the Magistrate shows that on April 3, 1978, the petitioners did not appear before the learned Magistrate first class, Bharatpur, They thus committed a breach of the conditions on which the Bombay High Court had granted them bail.

6. Another fact which has come to light from the record during the coarse of arguments is that in their application under Section 482 of the Code, which is a fairly lengthy document, the petitioners made a total suppression of the fact that they had been directed by the Bombay High Court to appear before the Magistrate at Bharatpur on April 3, 1978 They also made an incorrect averment suggesting as if a criminal case being No. 120/77 was pending before the learned Magistrate at Bharatpur. Having made that averment they asked from the court the relief that, 'the proceeding' before the Judicial Magistrate first class, Bharatpur, in Criminal case No. 120/77 against the petitioners be quashed & set aside.' As already indicated, the correct position is that No. 120/77 represents the number of the FIR as recorded by the officer-in charge of the Kotwali Police Station, Bharatpur, in the register prescribed for the purpose. There is no such case as No. 120/77 pending before the learned Magistrate.

7. These facts, as gathered from he record, reveal that the petitioners cannot possibly have any legitimate grievance either against the conduct of the investigation conducted by the police or issue of the warrants of arrest by the Magistrate during the said investigation. As regards the petitioner's complaint that the investigation undertaken by the police and the warrants issued by the Magistrate amount to an abuse of the process of the Court, the said allegation has only to be stated for its rejection Let alone the petitioners being victims of the so-called abuse of the process of the Court, they hive themselves, on the other hand, abused the process of this Court by resorting to suppressio veri and suggestio falsi. They had concealed from the Court, the fact that they were required by the Bombay High Court to appear before the learned Magistrate at Bharatpur on April 3, 1973. They made a false allegation that Criminal Case No. 120/77 is pending before the learned Magistrate, Bharatpur. Their application under Section 482 of the Code deserves dismissal on these grounds alone, but, having regard to the vehement and lengthy arguments addressed on their behalf by Mr. Tiwari I am inclined to examine the arguments, albeit briefly.

8. Mr. Dave, learned Counsel for respondent No. 2, raised a preliminary objection that since the matter is still at the investigation stage and there is no judicial proceeding pending in the Court of the learned Magistrate the application under Section 482 of the Code is not maintainable Mr. Tiwari, however, maintained that on April 8, 1977, when respondent No. 2 made his complaint in writing to the Magistrate and the latter passed an order thereon, he shall be deemed to have taken cognizance there of and, in that sense the judicial proceedings in the said COTI plaint are pending in his Court Counsel referred in this connection to the endorsement made on the complaint by the learned Magistrate to the effect that since it disclosed a cognizable offence, he was forwarding it to the officer-incharge of the Kotwali Police Station for investigation. The learned Magistrate must be deemed, so runs the argument, to have applied his mind to the complaint to determine, whether it disclosed a cognizable offence or not, & since he had applied his mind he had taken cognizance of the offence as contemplated by the provisions of Section 190(1)(a) of the Code. This argument is wholly untenable. The learned Magistrate himself made it clear in the said endorsement that he was not taking cognizance of the offence, since the same, being cognizable, should be investigated by the police He further directed the police under Section 156(3) of the Code to investigate. The police recorded the FIR in accordance with the complaint, and commenced investigation into it in exercise of its statutory powers In the facts and circumstances, the Supreme Court authority reported in Gopal Das v. State of Assam AIR 1961 SC 986 applies on all fours to this case The relevant holding of the Supreme Court may be reproduced here:

We cannot read the provisions of Section 190 to mean that, once a complaint is filed a Magistrate is bound to take cognizance, if the facts stated in the complaint disclosed the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is, obvious A complaint disclosing a cognizable offence may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should he wasted when primarily the duty to investigate in cases involving cognizable offence 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 Code.

Explaining the expression 'take cognizance' as it occurs in Section 190, the Supreme Court quoted with approval the observations of Mr. Justice Dass Gupta in the case of Superintendent and Remembrancer of Legal Affairs of West Bengal v. Abani Kumar Banerjee AIR 1950 Calcutta 437, to the effect that before a Magistrate can be said to have taken cognizance of an offence under Section 190(1)(a) of the Code, he must not only have applied his mind to the contents of the petition but he must have done so for the propose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XV dealing with complaints of which a Magistrate takes cognizance. In the instant case, the learned Magistrate applied his mined not for the purpose of proceeding under Chapter XV of the Code, but for ordering investigation under Section 156(3) of the Code He made it expressly clear that he was not taking cognizance of the offence himself. The warrants of arrest were issued by the learned Magistrate for the purpose of investigation at the instance of the Investigating Officer. It was made clear by the Supreme Court in the cited case that by issuing such warrants for the purpose of investigation, the Magistrate cannot said to have taken cognizance of the offence.

9. It can, therefore, be safely concluded that there is no judicial proceeding of any kind pending in the Court of the Judicial Magistrate, First Class, Bharatpur in respect of which this Court could possibly exercise its inherent jurisdiction under Section 482 of the Code. The matter is still pending at the stage of investigation.

10. Learned Counsel for the petitioners then cited Sejappa v. State of Mysore AIR 1966 Mysore 152, and Balwant Singh v. District Food Supply Controller 1975 CrLJ 687 (Punjab & Haryana High Court) in support of his argument that in the interest of justice it would be open to this Court, in the exercise of its extraordinary powers under Section 482 of the Code, to interfere even at the stage of investigation, if the FIR in the case does not disclose any offence whatsoever. These two authorities were considered by this Court in Jiwat Ram v. State of Rajasthan 1978 CrLJ 693, but not relied on. This Court preferred the contrary view, in as much as it held that the police are invested with statutory powers of investigation into cognizable offences & that the High Court will not interfere in the exercise of its inherent powers wider Section 482 of the Code in the investigation of a cognizable offence by the police.

11. Learned Counsel for the petitioners laid great stress on the observations of Kudal, J. in Jivatram's case (Supra) to the effect that:

It may however, be said in no uncertain terms that the court possesses adequate powers to see that no vezatious or false criminal proceedings are launched against any individual The court under such circumstances shall not hesitate to exercise its inherent powers if such facts are brought to the notice of the Court at the proper stage.

and contended that these observations clearly indicate that in exceptional cases that Court may exercise its extraordinary powers and stop a vexatious investigation undertaken by the police. In advancing this argument, counsel has obviously ignored the important words 'at a proper stage' occurring in the observation of Kudal J. quoted above. Such a stage can possibly arise only after final police report is submitted in the Court. When Kudal J spoke of the 'adequate powers' of the High Court to see that no vexatious or false criminal proceedings are launched against any individual, he might be having in his mind the writ jurisdiction of the High Court.

12. Reference may then be made to S.N. Sharma v. Bipen Kumar : 1970CriLJ764 , in which the Supreme Court held that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate. Dealing with the argument, like the one which was raised by petitioner's learned Counsel in the instant case, that giving such wide and uncontrolled powers of investigation to the police would give them a handle to engineer a false report of a cognizable offence against an innocent person and then harass him by carrying on a prolonged investigation of the offence, the Supreme Court observed that though the Code does give the police unfettered powers to investigate the cases where they suspect that congnizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of High Court under Article 226 of the Constitution Incidentally, Kudal J in making his observations quoted above, could as well be having in mind these observations of the Supreme Court.

13. Lastly, but most importantly, I may cite another ruling of the Supreme Court reported in Jehansingh v. Delhi Administration : 1974CriLJ802 . This authority was also followed by this Court in Jivatram's case (supra). Their Lordships have laid down the law in this ruling to the effect that whereon the date of filing of the petition under Section 482 of the Code, no charge-sheet or a complaint has been laid in the Court and the matter is still only at the stage of investigation by the police, the Court cannot in the exercise of its inherent jurisdiction under Section 482 of the Code interfere with the statutory power of the police to investigate and quash the proceedings.

14. Learned Counsel for the petitioners also read out before me the FIR in an attempt to show that it does not disclose any cognizable offence. He submitted that all that the complaint discloses is a grievance as to the alleged breach of contract by the petitioners resulting in the alleged injury to the complainant He referred in this connection to a copy of the plaint in the civil suit filed by the complainant subsequently for recovery of damages arising out of the alleged breach of contract by the petitioners. The fact that the complaint has subsequently filed a civil suit against the petitioners for recovery of money does not ipso facto show that no offence of cheating is involved in the transaction. Whether an offence of cheating is disclosed or not is a question which has to be determined, if it can be determined at all in these proceedings, with reference only to the complaint & no other document. Therefore, it would not be permissible to go into any other document or material produced by the parties in this Court during the course of arguments. The complaint, as laid, does disclose accusations of an offence against the accused under Section 420, IPC. Whether there is enough material collected during the investigation, warranting the submission of a charge-sheet against the petitioners under Section 173 of the Code is a matter which lies exclusively with in the province of the investigating agency.

15. For all these reasons, I find that this application is wholly groundless and must be dismissed as such. I would order accordingly.


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