Research › Browse › Judgment

Patna High Court · body

1982 DIGILAW 54 (PAT)

Renuka Sharma v. State of Bihar

1982-04-27

UDAY SINHA

body1982
Judgment Uday Sinha J. This is an application under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing the order of Chief Judicial Magistrate, Patna dated 18.11.1981 whereby the learned Magistrate decided to hold inquiry in terms of section 340 of the Code. The petitioner has also prayed for quashing the entire proceeding in Suit No. 504 (M)/81. 2. The petitioner is widow of late Ram Binod Sharma, who came of a very affluent family of this State. Ram Binod Sharma was partner of a firm trading under the name and style of 'M/s Ram Bahadur Thakur and Company'. After the death of her husband, the petitioner learnt to her dismay that an application had been filed before the Registrar of Firms in which it was stated that Ram Binod Sharma had retired from the partnership. The application purported to contain the signature of the late Ram Binod Sharma. A notice in Form-V of the Indian Partnership Act was also filed for issuing of notice to all concerned. The notice also purported to bear the signature of Ram Binod Sharma. The petitioner filed a complaint On 5.4.1980 in which it was alleged that opposite party no. 2 and others in conspiracy had created a false partnership deed On 1.4.1977 and that the application for reconstitution of the firm and the notice Form-V contained forged signature of the petitioner's husband Ram Binod Sharma. In proof of the allegations made in the complaint Photostat copies of Form-V and of the application for reconstitution of the firm were attached to the complaint. Suffice it to say, the Chief Judicial Magistrate, Patna by Order dated 1.5.1980 issued processes for offence under section 471 of the Indian Penal Code against opposite party no. 2 and others. The accused of that case including opposite party No. 2 moved this Court in Criminal Miscellaneous No. 4606 of 1980 for quashing the order issuing processes against them. This Court dismissed their application by order dated 11.2.1981. The accused tried their luck before the Supreme Court also, but their special leave application was dismissed. Thus ended the first round. 3. The husband and nephews which included opposite party No.2 fired the next shot. This Court dismissed their application by order dated 11.2.1981. The accused tried their luck before the Supreme Court also, but their special leave application was dismissed. Thus ended the first round. 3. The husband and nephews which included opposite party No.2 fired the next shot. On 18.11.1981 opposite party No. 2 filed an application before Chief Judicial Magistrate, Patna in which it was urged that the petitioner had filed the previous complaint on false averments and that the Photostat copies in support of the assertions in the preview complaint were not copies of the genuine documents. Thus according to opposite party No.2, the petitioner committed an offence in terms of section 193 of the Indian Penal Code. Opposite party no 2, therefore, prayed to the Chief Judicial Magistrate, Patna that a complaint may be filed for prosecution of the petitioner in terms of section 195 (1) (b) of the Code. On receipt of the petition, the learned Chief Judicial Magistrate on the very same day registered the petition as Suit No. 504 (M)/81 and directed calling for the records of the case which had been instituted by the petitioner. He also directed calling for the original documents from the Registrar of Firms. The petitioner being aggrieved by the order of the learned Magistrate initiating inquiry under section 340 of the Code has moved this Court for quashing the proceeding. 4. Learned Counsel for the petitioner submitted that the petition filed by opposite party No. 2 for prosecution of the petitioner was clearly a strategic move to checkmate the petitioner from prosecuting the case instituted by her against opposite party No.2 and others. It was submitted that the learned Magistrate having found substance in the allegation of the petitioner in the complaint filed by her, issued notice to the accused and that order having been upheld till the Supreme Court, the petitioner could not be hauled up for instituting a false case On the basis of forged documents. Whether the documents filed by the petitioner were forged or genuine would be a matter that will fall for consideration before the trial court and, therefore, the learned Chief Judicial Magistrate should not have embarked upon the inquiry into the genuineness of the documents until the conclusion of the trial initiated by the petitioner. 5. Whether the documents filed by the petitioner were forged or genuine would be a matter that will fall for consideration before the trial court and, therefore, the learned Chief Judicial Magistrate should not have embarked upon the inquiry into the genuineness of the documents until the conclusion of the trial initiated by the petitioner. 5. From the facts and circumstances, stated above, it is obvious that the application of the opposite party No.2 for prosecuting the petitioner is a counterblast and is intended to snipe at her when she is prosecuting the accused. This aspect of the matter, however, is entirely irrelevant for the present application. If Court processes have been issued on the basis of forged documents and false averments, the petitioner would certainly he liable to be prosecuted. The submission urged on behalf of the petitioners appears to be prima facie attractive, but does not bold water in the face of a decision in (M.L. Sethi. Versus R.P. Kapoor and another) The facts of that case were that appellant M.L. Sethi filed a report before Inspector General of Police for having been cbeated by respondent R. P. Kapuor Upon the basis of that report the police instituted a case of cbeating against R.P. Kapoor. While the police was investigating into the case, respondent R.P. Kapoor filed a complaint against appellant M.L. Sethi alleging that the appellant had instituted a false case against him in order to blackmail him. While the police investigation was in progress, the learned Magistrate took cognizance of the offence in the complaint case instituted by respondent R.P. Kapoor The point urged On behalf of appellant M.L. Sethi before the Supreme Court was that during the pendency of the police investigation the learned Magistrate had no jurisdiction to hold that a false case had been instituted and, therefore, the taking of cognizance and issuance of processes was illegal and without jurisdiction, as the allegations of appellant M.L. Sethi in the police case were still to be tested. It will be appreciated that before the Supreme Court the point was slightly different that those in the present case. On these facts stated above, the Supreme Court held that it was quite legitimate for the Magistrate to have taken cognizance and that although one case ran counter to the other, yet there was nothing in the Code of Criminal Procedure to prohibit both the cases being hears. On these facts stated above, the Supreme Court held that it was quite legitimate for the Magistrate to have taken cognizance and that although one case ran counter to the other, yet there was nothing in the Code of Criminal Procedure to prohibit both the cases being hears. In the instant case as well during the pendency of the case instituted by the petitioner an inquiry is being conducted whether the case instituted was on false averments Or not. On the basis of the Supreme Court case there appears to be no escape from the position that both cases may well run their Course. In that view of the matter, the submission urged on behalf of the petitioner that until the first trial initiated by the petitioner has come to a conclusion with a finding that it was on false averments, the present proceeding is illegal and misconceived has no substance and must be rejected. 6. In the instant case, the learned Magistrate has not decided as yet to file a complaint. He is only holding an inquiry. For ought one knows the learned Magistrate upon looking into the facts may decide not to fie a complaint. If he comes to the conclusion that the present proceeding has been initiated by opposite party No.2 only to harass the petitioner and not for the eradication of the offence of forgery, he need not and may not file a complaint. The grievance of the petitioner is, therefore, rather premature. 7. The last submission urged on behalf of the petitioners was that in an inquiry under section 340 of the Code, the petitioner is entitled to an opportunity to show that it is not a case in which filing of €a complaint is called for. This is a sound submission On behalf of the petitioner. The learned Magistrate was not justified in excluding the petitioner from the inquiry. The learned Magistrate was, therefore, bound to permit the petitioner to participate in the inquiry. The proceeding of the learned Magistrate to that extent is defective. If any authority on this question is needed reference may be made to the cases of Ganeshwar Maharaj versus King Emperor and Chote Lal Modi versus King Emperor. In the view that I have taken the inquiry initiated by the learned Chief Judicial Magistrate must go on, but the learned Magistrate cannot shut out the petitioner from the inquiry. If any authority on this question is needed reference may be made to the cases of Ganeshwar Maharaj versus King Emperor and Chote Lal Modi versus King Emperor. In the view that I have taken the inquiry initiated by the learned Chief Judicial Magistrate must go on, but the learned Magistrate cannot shut out the petitioner from the inquiry. 8. For the reasons stated above, the application for quashing the proceeding is dismissed with the observations made above. Application dismissed.