N. C. Dhoundial v. State of Bihar — 1993 DIGILAW 351 (PAT)

JUDGMENT DHARMPAL SINHA, J. 1. Through this application filed under Section 482 of the Code of Criminal Procedure, the petitioner seeks quashing of an order dated 16.9.1991 and the entire proceeding of a complaint case no. 260 of 1992 filed by the opposite party no. 2 before the Chief Judicial Magistrate, Ranchi, who after examining the complainant (opposite party no. 2 in this case) has by the impugned order transferred the aforesaid case under Section 192 of the Code of Criminal Procedure (to be hereinafter referred to as 'the Code') for enquiry to a court of Judicial Magistrate, 1st Class, Ranchi. 2. Some facts necessary for the disposal of this petition and for appreciation of the point raised may briefly be stated as follows:– Opposite party no. 2 (to be hereinafter referred to as the opposite party) filed a complaint dated 8.9.1992 whereupon the learned Chief Judicial Magistrate passed the impugned brief order, which reads as follows:– "The complainant is present. The complainant has been examined on S.A. I have perused the complaint petition and also his statement made on S.A. Let this complaint be transferred u/s 192 Cr. P.C. for enquiry fixing 25.9.1992 to the court of Shri J.S.P. Choudhary, Judicial Magistrate, 1st Class, Ranchi." 3. In the complaint seven persons were named as accused including the petitioner, who is named in the complaint petition at serial no. 1. The main facts alleged in the complaint petition are contained in paragraphs 4 to 10 of the complaint petition, which read as follows:– "4. At about 8:30 P.M. the petitioner came back to his residence from outside accompanied by Dr. Narendra Sinha and found the accused persons, who after criminal trespassing into the petitioner's premises, sitting on the petitioner's front varandah. As soon as the petitioner reached there they told him that the petitioner could not enter the house and the petitioner was virtually confined and restrained from moving. 5. That then they forcibly took the petitioner inside the house and confined him to his bed-room and forced him to hand over the keys to them. At the same time they confined his 83 year old mother and two of his minor children into the next bed-room and bolted the same from outside and started ransacking the house. 6. 5. That then they forcibly took the petitioner inside the house and confined him to his bed-room and forced him to hand over the keys to them. At the same time they confined his 83 year old mother and two of his minor children into the next bed-room and bolted the same from outside and started ransacking the house. 6. That they were repeatedly asking the petitioner where he has kept the cash and other valuables and particularly they also asked him where he keeps his confidential papers, notings, manuscript, etc., and the confidential tape recorder and cassettes used in vigilance work of surprise check by the petitioner. 7. That the accused persons were found moving in and out of the premises and during the commission of the crime they had taken away surreptitiously the confidential papers, reports, notings, cassettes which contained valuable evidence against the officers of Central Coalfields Limited and Coal India Limited against whom the petitioner had submitted reports after having found prima facie charges of corruption, illegality and serious malpractices. This ransacking continued till 10:30 A.M. of 31.8.1992 which started from 8:30 P.M. on 30.8.1992. They have also stolen key of the locker to tamper the same. 8. That during this period the mother of complainant and his two minor children became unwell and anyhow they were sent out at 6:00 A.M. on 31.8.1992 for check-up and medical treatment. 9. That the complainant was forcibly taken to the office also which is situated in Darbhanga House under confinement and they also ransacked the office for ulterior motive to have the important files and cassettes in their possession so that they may shield the big shots. 10. That the complainant was also forcibly taken against his will to the CBI office and they forced him to sign on some papers, forms etc. which he was not allowed to read and due to mental torture and criminal intimidation the complainant could not object to their evil desire. They also threatened him to implicate in false case if he opens his mouth against them." The complaint further contained some facts explaining the delay in lodging the complaint, and providing motive for the alleged occurrence. which he was not allowed to read and due to mental torture and criminal intimidation the complainant could not object to their evil desire. They also threatened him to implicate in false case if he opens his mouth against them." The complaint further contained some facts explaining the delay in lodging the complaint, and providing motive for the alleged occurrence. Those facts, however, are obviously not the acts or omission constituting offences alleged to have been committed by the persons, named in the complaint petition as accused including the petitioner, during the time of occurrence, which was stated in the complaint petition, as between 8:30 P.M. to 10:30 A.M. on 31.8.1992. It was further alleged in paragraph 15 of the complaint petition that the complainant was not ever told about any case or about anything against him nor did they (accused) produce any search warrant or any authority for entering into his house in the night; and it was also alleged in paragraph 13 of the complaint petition that the complainant learnt about institution of false and fraudulent case vide R.C. Case No. 17A of 1992, which had been challenged before this Court by the complainant by filing a CWJC No. 296 of 1992 (R). 4. It appears that the complainant was examined on solem affirmation on 16.9.1992 wherein he stated that when he returned to his house he had seen the accused persons sitting on the Varandah of his residence, that he was stopped from going inside, that the accused persons entered into the house accompanied by the complainant and they took cash, confidential papers, tape recording etc., and he was asked to hand over key of almirah, that the complainant's old mother and two children were also confined in another room and bolted from outside, that no search warrant was shown to him and that he was forced to sign several papers at his house as well as at his office where he was forcibly taken. 5. Learned Chief Judicial Magistrate, as the order itself indicates, passed the impugned order (quoted above) after perusing the complaint petition and statement made by the complainant, who was examined on solemn affirmation. 5. Learned Chief Judicial Magistrate, as the order itself indicates, passed the impugned order (quoted above) after perusing the complaint petition and statement made by the complainant, who was examined on solemn affirmation. The offences, as mentioned in the complaint petition as having been allegedly committed by the accused persons named therein are punishable under Sections 448, 342, 395, 427, 201, 500, 506, 384 and 120B of the Indian Penal Code (I.P.C. for short). 6. Learned Counsel for the petitioner has submitted that the impugned order as well as the whole of the proceeding started on the complaint filed by the opposite party before the Chief Judicial Magistrate are fit to be quashed and he has advanced the following arguments by reason of which the quashing is sought for:– His first contention is that in the impugned order learned Chief Judicial Magistrate has not specified as to which of the offences, which are mentioned in the complaint petition have been taken cognizance of by the Chief Judicial Magistrate and so the impugned order is bad, because according to provision of Section 190 of the Code any Magistrate can take cognizance of any offence constituted from the facts complained of but if no offence is mentioned, the order cannot be sustained. According to his submission in this connection making over of the case under Section 190 (2) of the Code could be done only after taking cognizance and so when the learned Chief Judicial Magistrate by the impugned order transferred the case for enquiry, he should have mentioned the offences specifically for which or relating to which enquiry had to be done. His second contention is that the petitioner is a Superintendent of Police (C.B.I.), Ranchi, who is a public servant and he is removable only by the Central Government and cognizance of any offence against the petitioner could not have been taken by the learned Chief Judicial Magistrate in view of the provisions of Section 197 of the Code, which bars taking of cognizance without previous sanction; and there was no mention in the complaint petition that previous sanction had been obtained and there was no material at all before the learned Chief Judicial Magistrate about having obtained sanction. According to his submission, the impugned order dated 16.9.1992 is bad, illegal and unsustainable because of this reason also. According to his submission, the impugned order dated 16.9.1992 is bad, illegal and unsustainable because of this reason also. His third contention is that since one of the offences mentioned in the complaint petition, namely, the offence punishable under Section 395 of the I.P.C. is exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate was bound to examine all the witnesses of the complainant in view of the provisions as contained in proviso to sub-section (2) of Section 202 of the Code. According to his submission, it is only the Magistrate, who can and does take cognizance of any such offence on complaint presented to him is mandatorily required under the proviso to examine all the witnesses on oath, and the Chief Judicial Magistrate committed violation of this proviso in making over transferring the case to another Judicial Magistrate, 1st Class without examining all the witnesses. In support of the contention, learned counsel for the petitioner has relied on Full Bench decision reported in Hoideenkutty Haji & others vs. Kunhikoya & others, A.I.R. 1987 Kerala 184. 7. The aforementioned contentions are specifically directed against the order dated 16.9.1992 passed by the learned Chief Judicial Magistrate. 8. Learned counsel for the petitioner has advanced some arguments for quashing the entire proceeding of the complaint case and those arguments are to the following effect:– First, the whole complaint case according to his submission had been lodged only because the complainant-opposite party was made an accused, and an F.I.R. had been lodged against him on the 30.8.1992. The first information report lodged against the opposite party no. 1 has been attached with this petition and on the basis of it is submitted that in course of investigation of that case some search and seizure had been made and documents of seizures prepared (vide Annexure 6 and 4 series). His contention is that after all these documents had been prepared officially and in discharge of duties during course of investigation by the concerned officials of the C.B.I., they have been made accused in the complaint case. Thus he submitted that the complaint petition had been lodged mala-fide and therefore, no judicial proceeding should be allowed to be continued on the basis of that complaint and the enquiry proceeding, therefore, should be quashed. Thus he submitted that the complaint petition had been lodged mala-fide and therefore, no judicial proceeding should be allowed to be continued on the basis of that complaint and the enquiry proceeding, therefore, should be quashed. Secondly, learned counsel for the petitioner relying on the provision of Section 76 of the I.P.C. and the decision reported in State of West Bengal vs. Shiv Mangal Singh & others A.I.R. 1981 S.C. 1917, has submitted that the petitioner against whom no specific allegation has been made in the complaint petition cannot be deemed to have done any act, which would be the offence and that even if some acts of excesses were done during course of search and seizure conducted in connection with the investigation, which acts were not strictly according to law but were done under the impression that the accused persons could take such action due to some mistake of fact, the same cannot amount to any offence. Finally it was submitted that in view of the case instituted against the opposite party and the materials relating thereto placed on the record of this case there is absolutely no chance of conviction and so there is no sense in allowing futile judicial proceedings to go on before the lower court and it should, therefore, be quashed for this reason also. On these arguments it has been submitted that continuance of the enquiry as ordered by the Chief Judicial Magistrate will amount to abuse of the process of the court. During course of his argument, learned counsel for the petitioner also cited some decisions, which will be referred to at the appropriate place. 9. As against the aforementioned arguments of the learned counsel for the petitioner, learned counsel for the opposite party has submitted that the petitioner has no locus standi to move this Court for quashing the proceeding when he did not even appear before the Court of a Chief Judicial Magistrate and when no process has been directed to be issued against him and he is not an accused in the sense of having been put on trial. He has further argued that the learned Chief Judicial Magistrate only ordered for enquiry in regard to the complaint and the enquiry has been undertaken by the transferee Magistrate, who examined one witness of the complainant on 4.11.1992 and after this stage was reached in the matter of enquiry being done under Section 202 of the Code, the petitioner by filing this petition wants to stop the process of enquiry, which is not permissible under the law. 10. Replying to the specific contentions of the learned counsel for the petitioner about non-mentioning of the offences of which cognizance has been taken by the Chief Judicial Magistrate in the impugned order dated 16.9.1992, learned counsel for the opposite party has submitted that it is not necessary under the law that specific mention should be made of the offences of which cognizance has been taken when only for enquiry the case is made over under Section 192 of the Code. His next contention is that the petitioner and the learned counsel appearing on his behalf seek to rely strongly on the facts relating to the other case instituted against the opposite party bearing R.C. No. 17(A) of 1992 (R) and attempt is being made to show that whatever actions were done on 30th and 31st of August, 1992 they were done in course of investigation of that case and in official capacity bona fide but these aspects according to the learned counsel of the opposite party cannot be considered at the stage of enquiry that has been ordered by the learned Chief Judicial Magistrate and all these may be appropriately considered only at the time of trial if after enquiry there would be occasion for summoning the petitioner or any other persons mentioned in the complaint petition. In support of his contention, learned counsel for the opposite party has relied on a decision reported in J.P. Sharma vs. Vinod Kumar Jain and others, 1986 Eastern India Criminal Cases 409. In support of his contention, learned counsel for the opposite party has relied on a decision reported in J.P. Sharma vs. Vinod Kumar Jain and others, 1986 Eastern India Criminal Cases 409. He has further submitted that the learned Chief Judicial Magistrate was legally bound to consider only the facts alleged in the complaint petition and whether on the alleged facts any such prima facie case of any offence mentioned therein was made out or not, which would justify enquiry or trial and before this Court also the only materials, which should be taken into account for the purpose of considering the question whether or not the impugned order of the learned Chief Judicial Magistrate is erroneous in law or whether the entire proceeding of the enquiry as ordered by the learned Chief Judicial Magistrate should be quashed would be the complaint petition itself and the statement on solemn affirmation of the complainant and the witnesses if any, and the defence, which is sought to be put forward by the petitioner cannot be considered at all. 11. It is further submitted that at the instance of the petitioner against whom no process has been issued, the enquiry cannot properly be stopped. He has cited decisions reported in M/s. Jayant Vitamins Ltd. vs. Chaitanya Kumar & another, 1992 (4) SCC 15 State of Haryana & others vs. Ch. Bhajan Lal & others, A.I.R. 1992 SC 604, and State of Bihar vs. Murad Ali Khan & others, A.I.R. 1989 SC 1: 1989 PLJR (SC) 6 in support of his contention. 12. The only point that arises for decision of this case is whether in the facts and circumstances of the case and in view of the contentions raised by the two sides, the complaint petition and the proceeding of enquiry along with the impugned order dated 16.9.1992 passed by the Chief Judicial Magistrate in the complaint case no. 260 of 1992 is fit to be quashed (so far the petitioner is concerned)? 13. Now from a perusal of the facts alleged in the complaint petition, relevant portion of which have been quoted above, I find that the opposite party has mentioned facts, which constitute allegations against all the persons, arrayed as accused in the complaint petition, including the petitioner. It is definitely indicated therein that when he returned to his house at about 8:30 P.M. on 30.8.1992 along with one Dr. It is definitely indicated therein that when he returned to his house at about 8:30 P.M. on 30.8.1992 along with one Dr. Narendra Sinha, he found the persons named in the complaint petition including the petitioner already present in the front Varandah of the petitioner's residence and sitting therein. Thereafter there is clear allegation that opposite party was wrongly confined and not allowed to enter into his house and restrained from moving. There is also allegation about putting his old mother along with other two minor children into a bed room and bolting it from outside, and then there are allegations inter alia of ransacking of the house for searching of some articles, and forcibly taking possession of some of them. In my opinion, the petition of complainant does contain some such allegation of facts as would constitute some offences. The truth or otherwise of the facts alleged and the stand which the petitioner appears to have taken about the actions taken during course of investigation is a matter, which can be considered only later at the appropriate stage. 14. The provision of Section 190 (1) (a) of the Code definitely empowers a Magistrate of 1st Class (Chief Judicial Magistrate is also Magistrate of 1st Class) to "take cognisance of the offence upon receiving a complaint of facts, which constitute such offence". As complaint with the above indicated contents had been filed by an officer of the D.I.G. rank, learned Chief Judicial Magistrate was expected to peruse and proceed in accordance with the provisions pf the Code. And it appears that the complainant was examined on solemn affirmation which was undisputedly in accordance with the provisions of the Code. It may be noticed here that the Chief Judicial Magistrate, when he passed the impugned order dated 16.9.1992 had before him only the complaint petition along with some enclosures that were filed and the statement of the complainant on solemn affirmation. Obviously before the learned Chief Judicial Magistrate the F.I.R. of the case bearing R.C. No. 17(A) of 1992 or seizure list and other documents, which have been filed before this Court and made annexure in this petition, were not available to the Chief Judicial Magistrate, nor could he be expected to look into the same. Obviously before the learned Chief Judicial Magistrate the F.I.R. of the case bearing R.C. No. 17(A) of 1992 or seizure list and other documents, which have been filed before this Court and made annexure in this petition, were not available to the Chief Judicial Magistrate, nor could he be expected to look into the same. To be sure there is reference in paragraph 13 of the complaint petition about that case and about challenge made to it by filing CWJC No. 296 of 1992 (R) and in this petition some detailed facts of that case have also been given in paragraph 8 of this petition; but in my opinion it has rightly been submitted by the learned counsel for the opposite party that these materials could not be considered by the Chief Judicial Magistrate, who under the law could have acted on the basis of the materials which were before him and he acted accordingly. 15. It may also be mentioned here that the Chief Judicial Magistrate only ordered for enquiry by the impugned order dated 16.9.1992. Obviously the Chief Judicial Magistrate had not finally made up his mind as to whether or not the offences alleged to have been prima facie made out or not against the petitioner (or others) and whether or not there was sufficient grounds for proceeding against any of the persons named in the complaint petition or not. Only after enquiry which he had ordered, the transferee Magistrate could be expected to form a final opinion as to whether the complaint was fit to be dismissed or process could have been issued and the accused mentioned in the complaint petition be put on trial, either of which course could legally be adopted on forming an opinion on the conclusion of the enquiry as to whether or not there was sufficient ground for proceeding. We cannot anticipate the result of the enquiry, which may ultimately result in dismissal of the complaint or summoning of the petitioner and some or the other accused persons mentioned in the complaint petition for trial. We cannot anticipate the result of the enquiry, which may ultimately result in dismissal of the complaint or summoning of the petitioner and some or the other accused persons mentioned in the complaint petition for trial. I may state in general terms that what appears to have happened is that the opposite party had approached the Chief Judicial Magistrate with the petition of complaint containing certain allegations with a view to his taking action under the Code against the persons named therein and the Chief Judicial Magistrate not being able to finally make up his mind on the facts alleged except to the extent that the complaint could not be dismissed outright, has ordered an enquiry, the result of which could have been a basis for forming the opinion as to whether or not there was sufficient ground for proceeding against the persons named as accused and whether process should be issued or the complaint petition should be dismissed. By this petition the petitioner wants that the enquiry itself should be stopped or thwarted when it was only a matter going on before the Chief Judicial Magistrate, who was approached for some grievance and the Chief Judicial Magistrate only took the view that the grievance needs further enquiry. I do not think that the law, propriety or justice require stifling of tile enquiry or quashing of it. 16. To be sure there may be cases in which complaint or for that matter the whole criminal prosecution based thereon may be quashed but those cases are only such cases in which if no case at all is made out from the facts alleged in the complaint petition taking them on their face value do not disclose any offence or where the allegations made are inherently improbable and patently absurd or when it is utterly mala fide. But all these aspects can be considered only from the contents of the complaint petition itself and not from extraneous materials, which may eventually constitute a defence of the persons against whom the complaint has .been lodged. This view is supported by the guideline indicated by our Highest Court in the decision reported in AIR 1989 SC 1 : 1989 PLJR (SC) 6 which reads as follows:– It is trite that jurisdiction under S. 481 Cr. This view is supported by the guideline indicated by our Highest Court in the decision reported in AIR 1989 SC 1 : 1989 PLJR (SC) 6 which reads as follows:– It is trite that jurisdiction under S. 481 Cr. P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible, nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceeding would in the circumstances amount to an abuse of the process of the court or not." 17. Now coming into the specific arguments as regards non-mentioning of the offences. in the impugned order of which cognizance has been taken or in respect of which enquiry as has been directed is to be made. I think that the law does not require that a Magistrate while making over case under Section 192 of the Code must necessarily specify the offence(s) in relation to which enquiry has to be conducted by the transferee Magistrate. No doubt as the wording of Section 192 of the Code indicates a case can be made over by the Chief Judicial Magistrate or any other Magistrate who has been empowered by the Chief Judicial Magistrate to make over any case, only after taking cognizance but the expression 'taking cognizance' has been interpreted to mean application of mind by the concerned Magistrate for the purpose of taking further action under the Code. There is no specific provision in the Code requiring of the Chief Judicial Magistrate (or any other Magistrate for that matter) that he must necessarily specify the offences relating to which he is taking cognizance or for the enquiry of which he is handing over the case to any other appropriate Magistrate. In any case such omission to specify offences in my opinion cannot be considered to be of such legal consequences as to nullify the order of making over of the case under Section 192 of the Code. So I reject this contention of the learned counsel for the petitioner. 18. As regards the arguments based on the provision of Section 197 of the Code, it may be noticed that in the complaint petition itself there is no mention that the petitioner is Superintendent of Police though it is indicated that all the persons named therein as accused are C.B.I. officers. So no material was available before the Chief Judicial Magistrate to arrive at a conclusion that the petitioner was the Superintendent of Police, a public servant, removable by the Central Government. But apart from this reason, the protection under Section 197 extends only to such acts of officers which can be said to be done while discharging of official duties or at least while purporting to be discharging their official duties. In the complaint petition itself there is nothing to indicate that whatever was done by the petitioner (and other persons named in the complaint petition) during the time of occurrence from 8:30 P.M. on 30.8.1992 to 10:30 A.M. on the next following date was done under any authority or in course of discharging of any duty as a public servant. It is rather specifically mentioned in the complaint petition (vide paragraph 15 of the complaint petition) that the complainant was not even told about any case or about anything against him nor did they show any search warrant nor did they produce any authority to enter into the house at night. Soon the basis of the materials which were before him if the learned Chief Judicial Magistrate has ordered making over the case for enquiry, I do not think that any illegality has been committed by him. Soon the basis of the materials which were before him if the learned Chief Judicial Magistrate has ordered making over the case for enquiry, I do not think that any illegality has been committed by him. Indeed, the defence which seems to have been taken before this Court is that everything was done bona fide and in good faith in course of investigation, but this defence could not be considered at that stage nor were the materials relating to the same available before the Chief Judicial Magistrate. So the impugned order dated 16.9.1992 cannot be held to be in contravention of Section 197 of the Code. 19. Moreover since there is mention of case no. R.C. 17(A) of 1992 in paragraph 13 of the complaint petition, enquiry if considered necessary and to the extent permissible under the law could be done in that aspect also. 20. As regards the argument that the learned Chief Judicial Magistrate himself must have examined all the witnesses in view of the proviso to sub-section (2) of Section 202 of the Code, I am of the opinion that though it is required that when a case is exclusively triable by the Court of Session, all the witnesses of the complainant have to be examined on oath as required by the proviso and as the Kerala High Court also held (as mandatory enquiry), but I do not think that all the witnesses of the complainant must under the proviso have been examined by the Chief Judicial Magistrate himself. The proviso to sub-section (2) of Section 202, in my opinion, is required to be complied with either by the Magistrate, who received the complaint of an offence and is legally authorised to take cognizance or by a Magistrate to whom the case is made over under Section 192 of the Code. This appears to be indicated from the initial clauses of sub-section (1) of Section 202, which shows that whatever has to be done under this section, can be done by the transferee Magistrate. This appears to be indicated from the initial clauses of sub-section (1) of Section 202, which shows that whatever has to be done under this section, can be done by the transferee Magistrate. The initial clauses read as follow: – "Any Magistrate on receipt of complaint of an offence, of which he is authorised to take cognizance or which has been made over to him under Section 192 of the Code may, if he thinks fit, postpone issue of process and either inquire into the case himself or direct investigation." So though it is mandatorily required by the proviso to sub-section (2) of Section 202 that all the witnesses shall be examined on oath when the offence of the complaint is triable exclusively by the court of session, yet all of them need not be examined by the Magistrate to whom the complaint is presented; they or those who have not been examined by the Magistrate to whom the complaint petition was presented may, in my opinion, be examined by the Magistrate to whom the case is made over under Section 192 of the Code. 21. As regards the argument advanced for quashing the entire proceedings, I have already indicated above that the fact that a case has been instituted against the complainant-opposite party and the materials relating to that case could not be taken into consideration; for that would be beyond the parameters laid down by the law for consideration by a Magistrate of First Class when he is applying his mind to the petition of complaint presented before him. The argument by taking shelter of the provision of Section 76 of the I.P.C. and the decision relied upon in this regard as reported in State of West Bengal vs. Shew Mangal Singh & others, A.I.R. 1981 S.C. 1917, is also not tenable for it is based on what the petitioner is trying to make out as his defence. 22. The argument by taking shelter of the provision of Section 76 of the I.P.C. and the decision relied upon in this regard as reported in State of West Bengal vs. Shew Mangal Singh & others, A.I.R. 1981 S.C. 1917, is also not tenable for it is based on what the petitioner is trying to make out as his defence. 22. The argument that no judicial proceeding should be allowed to continue if there is no chance at all of conviction and in this case according to the submission, there in no such chance because of the facts of the other case, in my opinion, is also not acceptable inasmuch as when the case is still at the stage of enquiry and when the defence which seems to have been set up and which seems to have been the basis for advancing this argument about little chance for conviction is not a material which can be properly considered at this stage. Therefore, this contention also fails. 23. I may mention here about some decisions, which have been cited on this point during course of the argument providing guidelines while exercising power of quashing under the provision of Section 482 of the Code. The decisions cited in this regard are R.P. Kapoor vs. State of Punjab, A.I.R. 1960 SC 866, State of West Bengal vs. S.N. Basak, A.I.R. 1963 SC 447, Hazari Lal Gupta vs. Rameshwar Prasad and another, A.I.R. 1972 SC 484 and Jehan Singh vs. Delhi Administration A.I.R. 1974 SC 1146 but all these cases and several others have been noticed in the recent decision of the Supreme Court in the case of State of Haryana and others vs. Ch. Bhajan Lal and others, A.I.R. 1992 SC 604. Bhajan Lal and others, A.I.R. 1992 SC 604. In paragraph 108, the Apex Court has observed as follows:– "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise or the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the case. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherenly improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherenly improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a, criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." The Apex Court has also repeatedly said in several decisions that no inflexible propositions can be laid down in this regard. I have already indicated that the allegations made in the complaint petition in the instant case cannot be said to be such as not to constitute any offence, if they are taken at their face value and accepted in their entirety. It also appears to be implied that what will transpire later as by way of defence or otherwise cannot be looked into at the stage when enquiry is made under Section 302 of the Code by a Judicial Magistrate in any complaint. As regards of fact alleged in the complaint petition and the allegations made therein, they cannot be considered to be inherently improbable or patently absurd or unacceptable. The guideline given in sub-para 6 of paragraph 108 of the decision in the Ch. Bhajan Lal's case (supra) has already been considered above in the context of the provision of Section 197 of the Code. In this connection, learned counsel for the petitioner has urged that the allegations made by the opposite party against the officers of the C.B.I. including the petitioner about the alleged entry and taking possession of some items as stated in the complaint petition are all acts, which can be related to the official acts done during the course of investigation. In this connection, learned counsel for the petitioner has urged that the allegations made by the opposite party against the officers of the C.B.I. including the petitioner about the alleged entry and taking possession of some items as stated in the complaint petition are all acts, which can be related to the official acts done during the course of investigation. But I have already indicated that unless the stand of the defence, which seems to have taken in this regard, is taken into consideration, it cannot be held that taking cognizance of the offence was barred learned counsel for the petitioner in this connection placed reliance on the decision reported in Sri Ram Swarath Yadav and another vs. Dr. Rajeshwar Prasad Sinha and another, 1991 (1) PLJR 464 , but in this case the prosecution had been quashed in an entirely different factual context where a police officer had made some search in execution of process issued under Sections 82 and 83 of the Code, which had, however, been stayed but the fact of stay was not known to the police officer. In this case it is not even the stand of the petitioner that lie or any of his companions against whom the complaint had been filed, had obtained any process or authority from any Magistrate and in the complaint petition it has been definitely alleged that no authority was shown. Moreover, there are decisions to the effect that the question of sanction may be considered at the time of issue of process. The decision reported in Jamuna Rai vs. N. Singh, 1969 PLJR 234, cited by the learned counsel for the petitioner also is of little avail to the petitioner for the reasons I have already indicated above. All the acts alleged in the complaint petition cannot necessarily be said to be acts done in discharge of official duty or even purporting to have been done in discharge of such duty. Indeed the whole argument taking the shelter of official acts seems to be misplaced because that is based on the stand which the petitioner appears to have taken by way of defence which could not have been considered by the learned Chief Judicial Magistrate at the stage when he passed the impugned order. 24. Indeed the whole argument taking the shelter of official acts seems to be misplaced because that is based on the stand which the petitioner appears to have taken by way of defence which could not have been considered by the learned Chief Judicial Magistrate at the stage when he passed the impugned order. 24. I also would like to add that stiffling of enquiry cannot be considered to be in the interest of justice and when no process has yet been issued against the petitioner, I do not think that any question of abuse of process has arisen in this case. It has been observed in several cases by our Apex Court that there should not be interference in investigation, which is a statutory function of the police and investigation is a matter falling under the domain of the police. On the same principle I think the High Court normally should not interfere in the exercise of discretionary power given by the Code to the Judicial Magistrate to hold enquiry into a complaint petition unless of course the discretion has been used arbitrarily and improperly. In the instant case I am of the opinion that making over the case for enquiry under Section 192, which had been done by the Chief Judicial Magistrate by the impugned order cannot be considered to be an arbitrary or fanciful exercise of discretion. The interest of justice requires that if any authority has been given discretionary power and that discretionary power has not been abused, misused or exercised arbitrarily, the High Court should not interfere in exercise of power under Section 482 of the Code. 25. Thus taking into consideration all these aspects of this case, I am of the opinion that it is not a fit case in which the impugned order of the learned Chief Judicial Magistrate dated 16.9.1992 and/or entire criminal prosecution can be quashed. I, accordingly, decide the point for decision. 26. In the result, therefore, this petition is dismissed.