Jagdish Ch. Jhan @ Jagdish Jhan v. State — 1994 DIGILAW 241 (CAL)

JUDGMENT Arun Kumar Dutta, J. 1. By this Revisional Application under s.482 of the Code of Criminal Procedure (hereinafter referred to as Code), the petitioner-accused has prayed the Court for setting aside the impugned order dated 24th July, 1990 passed by the Learned Metropolitan Magistrate, 9th Court, Calcutta, in G.R. Case No. 1463 of 1984 before him and for quashing of the said proceeding on the grounds made out therein. 2. The facts as are relevant for the present purpose may shortly be set-out as follows:- 3. One Binod Kumar Mehta, as complainant, had filed a petition of complaint against the petitioner accused (hereinafter referred to as accused) on 2nd March 1984 before the Chief Metropolitan Magistrate at Calcutta for having allegedly committed offences punishable under Ss. 468, 469, 471 and 477-A, Indian Penal Code (hereinafter referred to as IPC). The case was transferred to the Metropolitan Magistrate, 15th Court, Calcutta, for enquiry and trial under s. 192(1) of the Code. The said Learned Magistrate after examining the complainant and two witnesses on 3rd March, 1984 under s. 200 of the Code had directed issue of process against the accused under Ss. 468/471/477, IPC. But despite the filing of the aforesaid complaint case, being No. C-570 of 1984, the said complainant had filed another petition of complaint before the Chief Metropolitan Magistrate at Calcutta on 14th March, 1984 against the accused on the same set of facts for having allegedly committed an offence punishable under s. 408, IPC, with a prayer for sending the same to the police for investigation under s. 156(3) of the Code. The Learned Chief Metropolitan Magistrate by his Order dated 14th March, 1984 had sent the said petition of complaint to the Deputy Commissioner of Police, Detective Department, Calcutta, for causing investigation under s. 156(3) of the Code, which was eventually registered as Park Street P.S. Case No. 181 dated 11.4.1984 on 11th April, 1984. The police after investigation had eventually submitted charge-sheet in the relevant case against the accused and three others before the Learned Magistrate concerned on 28th August, 1986 under Ss. 120B/420/408/461, 468, 471, IPC. The Learned Magistrate was not informed in the aforesaid complaint case about the pendency of the aforesaid Police Case, the investigation in progress therein, and the submission of charge-sheet by the police after completion of investigation before the Court on 29.8.86. 120B/420/408/461, 468, 471, IPC. The Learned Magistrate was not informed in the aforesaid complaint case about the pendency of the aforesaid Police Case, the investigation in progress therein, and the submission of charge-sheet by the police after completion of investigation before the Court on 29.8.86. He was made to proceed with the aforesaid relevant Complaint Case (Case No. C-570 of 1984) from time to time, allowing time to the complainant to present evidence in the matter, as appearing from the Certified Copy of the Ordersheets filed. It would oddly appear therefrom that even though the said case had been fixed for evidence from time to time, the complainant had absented himself from the Court on a number of occasions, as on 3.5.84, 13.6.84 and 2.8.84. On 10.9.84, he had examined himself in part and on his prayer his further examination was adjourned to 12.11.84 on which date he had again absented himself. He had further examined himself in part on 25.2.85, and on his prayer his further examination was adjourned to 25.4.85. But he had again started absenting himself from the Court on different dates fixed for the purpose, as on 28.6.85, 2.8.85 and 3.9.85. He had eventually examined himself in full before charge on 1.10.85. On his prayer for time for adducing further evidence, the case was adjourned to 5.12.85 for further evidence. But the complainant had again absented himself from the Court and had prayed for adjournment on 5.12.85, 16.2.86 and 7.4.86. The Learned Magistrate, in the circumstances, was constrained to reject his prayer for any further adjournment by his order dated 7.4.86, and had treated the prosecution case to be closed, fixing 22.5.86 for consideration of charge. The complainant, as usual, had again absented himself from the Court on that day and had again prayed for adjournment, which was allowed by the Learned Magistrate. On 28.7.86 he had filed a petition before the Learned Magistrate stating that he would move the High Court against the order dated 7.4.86 whereupon the case was adjourned to 29.9.86 for further order and consideration of charge. But on that date as well the complainant had again absented himself, as before; and on his prayer the case was adjourned to 6.1.87 for consideration of charge. He was again absent on that date as well and on the next adjourned date on 2.3.87. But on that date as well the complainant had again absented himself, as before; and on his prayer the case was adjourned to 6.1.87 for consideration of charge. He was again absent on that date as well and on the next adjourned date on 2.3.87. It was only on 22.4.87 that he had filed a petition before the Learned Magistrate informing him for the first time that a Police Case was pending in respect of the same offence on the same set of facts praying for calling for Police Report under s. 210 of the Code. The Learned Magistrate had thereupon directed the Complainant to produce the relevant document in support of his said petition. But he (complainant) had preferred not to produce any document or furnish the relevant particulars of the relevant Police Case before the Learned Magistrate for enabling him to pass appropriate orders under s. 210 of the Code, despite opportunities granted to him (Complainant) on 22.6.87, 17.7.87 and 24.7.87. In the aforesaid circumstances, the Learned Magistrate, left with no other alternative, was constrained to discharge the accused presumably under s. 245(1) of the Code as the materials presented before him in the relevant case were not sufficient to frame charge against him (accused), since the Complainant had pointedly failed, neglected and ignored to take any step for producing any document or furnishing the requisite particulars in respect of the relevant Police Case for enabling the Learned Magistrate to pass appropriate orders under s. 210 of the Code. In such circumstances, the petitioner-accused had eventually filed an application before the Learned Magistrate concerned on 16.1.90 for dropping the relevant Police Case in view of his discharge in the aforesaid relevant Complaint Case on the self-same allegations; which was not challenged by the Complainant before any higher forum. The Learned Magistrate had rejected the petitioner's application by his impugned order dated 24.7.90 for the reasons recorded therein. Hence the instant Revisional Application. 4. On persual of the aforesaid impugned order dated 24.7.90 passed by the Learned Magistrate concerned in the relevant Police Case, being G.R. Case No. 1463 of 1984, it would oddly appear that the accused/petitioner had contended before him that the relevant Police Case was not maintainable in view of his discharge in the aforesaid relevant Complaint Case in view of the provisions of s. 300 of the Code. Since the order of discharge of the accused in the relevant Complaint Case cannot be deemed to be an order of acquittal, in view of the explanation contained in s. 300 of the Code, the Learned Magistrate does not seem to have erred in rejecting the petitioner's contention that the relevant Police Case is not maintainable, in such circumstances. The provisions of s. 300 of the Code, on a plain reading, would not clearly be applicable to the facts and circumstances in the relevant matter before us. So also conceded by the Learned Advocate for the petitioner, Mr. Pradip Kumar Ghosh, in his usual wisdom and frankness. 5. The Learned Advocate for the Opposite-Party-State, Mr. Manas Ranjan Chakraborty, while supporting the aforesaid impugned order dated 24.7.90, and opposing the instant Revisional Application for quashing of the relevant proceedings (being G.R. Case No. 1463 of 1984) before the court below, had waxed eloquent that the Learned Magistrate went wrong in discharging the accused in the relevant Complaint Case without staying the same in terms of s. 210 of the Code when it was brought to his notice by the Complainant that a Police Case was pending on the selfsame allegations against the accused. He seemed to urge that the order of discharge of the accused therein would, therefore, be a nullity. In order to consider the aforesaid submission it is necessary to look to the provisions of s. 210 of the Code which runs as follows:- "Procedure to be followed when there is complaint case and police investigation in respect of the same offence- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of the inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under s. 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. " 6. The aforesaid provision postulates a contingency, where, after the commencement of the new Code, where a complaint a filed, and it is pending enquiry or trial, it is made to appear to the Magistrate, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the enquiry or trial held by him. Then only he need stay the proceedings and call for a report. The provisions of s. 210(2) will be attracted only in such a case. In order to attract s. 210(1) and (2), it is necessary that when the Magistrate is made known about the investigation during the enquiry or trial of the complaint case, the police investigation is pending and it is in progress and not finalised. 7. A Learned Single Judge of the Orissa High Court in Padmalochan Sahu vs. Lokanath Sethi & Ors., 1981 Cr.L.J. 189, has held that the provision for staying the proceedings in the complaint case under s. 210 is not to stay the complaint case indefinitely till the investigation in the police case is over or till the filing of the Final Report in the case, more so when the concerned police officer does not act expeditiously in the matter and/or does not submit his report under s. 210 to the Court at an early date. Provision for stay of the proceedings of the complaint case is made under s. 210 only for the purpose of calling for a report in the matter from the police officer conducting the investigation to examine whether or not to proceed with the complaint case, in the facts and circumstances of the case, and in view of the provisions in s. 210(2) and (3). If the said report is not submitted within a reasonable time it is not expected of the court to keep the complaint case shelved for any indefinite: period helplessly waiting all the time for the investigating agency to file its report as and when it chooses to do so. 8. For much the same reasons discussed in the said decision and regard being had to the aforesaid provisions of law, I find nothing to differ from the view so taken therein. Following the aforesaid decision, another Learned Single Judge of the Orissa High Court in Dr. Kumudini Padhi vs. Prasanta Kumar Mandal, 1989 Cr.L.R. 1861 has reiterated that if the police report is not received for a considerable long time, the taking of cognizance of offence after considering the materials on record (in a Complaint Case) cannot be said to be improper. So also an order of discharge of an accused in the absence of materials can neither be said to be improper. 9. In the instant matter before us, the relevant Complaint Case, being No. C-570 of 1984, was filed by the Complainant on 2nd March, 1984. The second petition of complaint was filed on 14th March, 1984 by the same very complainant on the same set of facts, with a prayer for sending the same to the police for investigation under s. 156(3) of the Code, which was allowed by the Learned Magistrate by his order dated 14th March, 1994, giving rise to Park Street P.S. Case No. 189 dated 11th April, 1984. It would oddly appear from the materials on record that the Investigation in the aforesaid Police Case had already been completed, and charge-sheet submitted before the Learned Magistrate by the Investigating Officer on 29th August, 1986. It would oddly appear from the materials on record that the Investigation in the aforesaid Police Case had already been completed, and charge-sheet submitted before the Learned Magistrate by the Investigating Officer on 29th August, 1986. The Learned Magistrate was informed by the complainant in the aforesaid Complaint Case for the first time on 22nd April, 1987 about the pendency of the relevant Police Case on the self-same allegations, praying for calling for police report under s. 210 of the Code after completion of the Investigation and submission of chargesheet. Since the same investigation in the relevant police case had already been completed (not then in progress), the provisions of s. 210 of the Code could not conceivably apply to the relevant case as such. It was, however, sadly sought to be submitted by the Learned Advocate for the Opposite-Party-State that the relevant petition of complaint under s. 156 of the Code having been filed by the Complainant before the Learned Magistrate after the filing of the relevant complaint case, he must be deemed to have knowledge about the pendency of the aforesaid two cases at the relevant point of time. Had he really the knowledge about the pendency of the relevant Complaint Case filed earlier on 2nd March, 1984, he (Magistrate) would not certainly have directed the Police to treat the subsequent Petition of Complaint filed by the same very complainant before him on 14th March, 1984 on the self-same allegations as FIR and proceed with the investigation of the case according to law, as he did. It would indeed be inconceivable that a Magistrate would keep in mind all matters filed before him day-to-day unless the same are brought to his notice by the parties concerned. In the relevant proceedings before us, when it was made to appear to the Learned Magistrate by the Complainant in the relevant Complaint Case on 24th July, 1987 for the first time that a Police Case was pending on the self-same allegations, the Investigation therein was not then in progress, but had already been completed by filing charge-sheet therein before the Court on 29th August, 1986. Section 210 of the Code, in terms, would not clearly be applicable in the relevant matter as such. The submissions of the Learned Advocate for the Opposite-Party-State on the aforesaid point is accordingly over-ruled. 10. Section 210 of the Code, in terms, would not clearly be applicable in the relevant matter as such. The submissions of the Learned Advocate for the Opposite-Party-State on the aforesaid point is accordingly over-ruled. 10. It would again seem significant and observable to note from the facts and circumstances already indicated above that the Complainant in the relevant Complaint Case did neither file the relevant documents, nor the particulars of the relevant Police Case, despite a number of opportunities granted to him by the Learned Magistrate, for enabling him (Magistrate) to call for a report from the Police under s. 210 of the Code, as required, even if the said provision was applicable in the matter. The Court, in the circumstances, could not conceivably have waited helplessly for indefinite period for the Complainant to produce the relevant documents or furnish the relevant particulars for calling for a report from the police thereunder even if the investigation of the relevant Police Case was then in progress. The question of staying the relevant Complaint Case did not and could not arise, in such circumstances. The relevant order of discharge dated 24th July, 1987 passed by the Learned Magistrate in the relevant Complaint Case cannot clearly, therefore, be held to a nullity. 11. As already indicated above, the Learned Magistrate was constrained to record the aforesaid order of discharge dated 24th July, 1987 in the aforesaid relevant Complaint Case on the failure of the Complainant to produce evidence before him despite unnumbered opportunities granted to him. He having failed to present evidence in support of his petition of complaint despite so many opportunities granted to him by the Learned Magistrate he was left with no other alternative but to discharge the accused. As observed by the Learned Magistrate in his aforesaid order, it had been alleged by the Complainant in his petition of complaint that the accused in the discharge of his duties had forged certain Bills and had sent the same to Dunlop Company at a higher rate than the rate of the Complainant-Company. It was further alleged that he (accused) used to destroy the original Bills and had manufactured counter-foil Bills with inflated amounts. It was further alleged that he (accused) used to destroy the original Bills and had manufactured counter-foil Bills with inflated amounts. With the help of those counterfoil Bills he used to get more articles from the Company than what he had actually supplied to the Dunlop Company, and had thus misappropriated some goods for his own wrongful gain and had misappropriated more than Rs. 4½ lacs from the Company of the Complainant. But despite the allegations so made that the accused had forged certain Bills or documents and had falsified accounts, the complainant had not produced any such Bill or document in support of the allegations made by him. He had examined only himself and none else in support of his said allegations despite unnumbered opportunities granted to him. He did neither care to attend the Court when the relevant Complaint Case was eventually taken up for consideration of charge. Upon considering all materials on record, the Learned Magistrate was accordingly constrained to hold that there was no material on record to frame charge against the accused for the alleged offence. The Learned Magistrate had also observed in his aforesaid order that he was at loss to understand what was playing in the mind of the Complainant in view of his aforesaid conduct. He had, accordingly, been constrained to discharge the accused presumably under s. 244(1) of the Code, though wrongly referring s. 239, which did not apply to the case. The order of discharge recorded by the Learned Magistrate by his aforesaid order dated 24.7.87 in the aforesaid Complaint Case on the finding of fact that there was no material on record to frame charge against him does not appear to have been challenged by the Complainant before any appropriate higher forum. The said order must, therefore, be deemed to have reached its finality. Hence comes the question of the Rule of issue Estoppel. 12. The said order must, therefore, be deemed to have reached its finality. Hence comes the question of the Rule of issue Estoppel. 12. A Five-Judge Bench of the Supreme Court in Manipur Administration vs. Thockchom Bira Singh, AIR 1960 SC 87: (1965(1) Cr.L.J. 120) has held that the rule of issue estoppel in a criminal trial is that where an issue has been tried by a competent Court on former occasion and a finding has been reached in favour of an accused, such finding would constitute an estoppel of res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois acquit, but only precludes evidence being led to pro a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding a fact recorded by a competent Court at a previous trial. 13. It has been echoed in the decision in Piara Singh vs. State of Punjab (by a Three-Judge Bench of the Supreme Court), reported in AIR 1969 SC 961 : (1969 Cri.L.J. 1435) that "the principle of issue-estoppel is different from the principle of double jeopardy or autrefois acquit, as embodied in s. 403 of the Criminal Procedure Code. 13. It has been echoed in the decision in Piara Singh vs. State of Punjab (by a Three-Judge Bench of the Supreme Court), reported in AIR 1969 SC 961 : (1969 Cri.L.J. 1435) that "the principle of issue-estoppel is different from the principle of double jeopardy or autrefois acquit, as embodied in s. 403 of the Criminal Procedure Code. The principle of issue-estoppel is a different principle, viz., where an issue of fact has been tried by a Competent Court on a former occasion and a finding has been, reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and\conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2), Cr.P.C.. For issue-estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. Thus any issue as between State and one of the accused persons in the same litigation cannot operate as binding upon the State with regard to the other accused." 14. It has clearly been indicated in the latter decision that for issue-estoppel to arise, there must have been distinctly raised and inevitably decided the same issue is the earlier proceedings between the same parties. It has also been clearly held in the former decision that the said rule does not prevent the trial of any offence as does autrefois acquit, but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before the Court of competent jurisdiction. The rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a Competent Court at a previous trial. 15. In view of the principles of law enunciated in the aforesaid decisions on the question of Rule of issue Estoppel, the Learned Magistrate having already held by his order dated 24th. The rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a Competent Court at a previous trial. 15. In view of the principles of law enunciated in the aforesaid decisions on the question of Rule of issue Estoppel, the Learned Magistrate having already held by his order dated 24th. April, 1987 in the relevant Complaint Case No. C-570 of 1984 that there is no material on record to frame charge against the accused and having discharged him (accused) on the said finding of fact for the reasons recorded at length therein, the reception of evidence in the subsequent Police Case, being G.R. Case No. 1463 of 1984 before the court below, on the same set of facts to upset and disturb the said finding of fact would clearly be precluded. The prosecution of the accused in the said Police Case, in the aforesaid circumstances would clearly, therefore, be an exercise in futility. The Supreme Court has held in the decision in Madhav Roo Jiwaji Rao Scindia vs. Sambhaji Rao Chandroji Rao Angre, AIR 1988 SC 709 : 1988 Cri.L.J. 853, that where in the opinion of the Court the chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case, also quash the proceedings, even though it may be at a preliminary stage. 16. The petitioner-accused has prayed the Court for quashing of the aforesaid relevant Police Case under s. 482 of the Code which reads as follows :- "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. " 17. " 17. While considering the scope, extent and power of the High Court thereunder the Supreme Court in the State of Karnataka vs. L. Muniswami and Others, AIR 1977 SC 1489 has observed that in the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction. 18. In view of the facts and circumstances of the relevant proceedings before us and the principles of law discussed above, there could be no mistaking that the relevant Police Case before the court below is liable to be quashed, both on points of facts as also on points of law. 19. In the result, the Revisional Application succeeds. The relevant proceedings before the court below, being G.R. Case No. 1463 of 1984, so far as the same relates to the Petitioner-accused Jagadish Ch. Jhan alias Jagdish Jhan, be accordingly hereby quashed. The petitioner-accused be also discharged from his Bail Bond, if on Bail. It is, however, made clear that the aforesaid relevant proceedings shall proceed according to law in respect of the remaining accused therein. The Rule is accordingly made absolute. 20. Let the lower court record be sent down to the court below forthwith. The petitioner-accused be also discharged from his Bail Bond, if on Bail. It is, however, made clear that the aforesaid relevant proceedings shall proceed according to law in respect of the remaining accused therein. The Rule is accordingly made absolute. 20. Let the lower court record be sent down to the court below forthwith. The Learned Magistrate is directed to expedite the trial of the relevant case in respect of the remaining accused and shall seek to dispose of the same, as early as possible, preferably within a period of six months from the date of communication of this order in view of the age of the matter. Rule made absolute. Proceedings in G.R. Case No. 1463 of 1984 as against the petitioner is quashed. Direction given to expedite trial of the case in respect of the remaining accused.