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2005 DIGILAW 142 (CAL)

KURSHID AHMED v. RAVI FOGLA

2005-03-01

AMIT TALUKDAR

body2005
Amit Talukdar ( 1 ) TO wriggle out of the situation arising out of the issuance of summons upon them directing them to answer the accusations of having committed an offence punishable under Sections 385, 420, 511 and 120b of the Indian penal Code by the learned Metropolitan Magistrate, 13th Court, Kolkata in connection with Case No. C/263/04 the petitioners, who feel that the Petition of Complaint taken in their entirety do not make out a case for the alleged offence, have beseeched this Court to quash the said proceeding. ( 2 ) THE opposite party No. 2 took out a Petition of Complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta alleging commission of offence punishable under Sections 389, 465, 468, 469, 471, 420, 511 read with Section 120b of the Indian Penal Code. It was averred in the said Petition of Complaint that on or about 20. 11. 2003 a printed bill in the name of the complainant was forwarded and immediately it was verbally brought to the notice of the petitioner Nos. 1 and 2 that he is no way responsible for the purported bill, as her never applied for any connection. Recitals in the said Petition of Complaint show that the Petitioner No. 1 is a Chief Executive of Reliance Infocom Ltd. and the petitioner No. 2 is also another Officer Of the said company concerned with looking after day-to-day affairs of the Kolkata office and the other accused Nos. 3, 4 and 5 (Mukesh D. Ambani, Anil D. Ambani and Anand Jain respectively), who are not before this Court controls and manages the company. Petitioner Nos. 1 and 2 "are directly related and/ or connected with the Accused Nos. 3, 4 and 5 and do all the activities as per the direction and/or instructions of the Accused Nos. 3, 4 and 5. ". It appears that the complainant/petitioner who is a businessman in motor parts never applied for any mobile phone connection from the said company but, he received a letter from the said company confirming the connection and he replied that he never applied for the said connection. However, in spite of the same he got a printed bill against the purported service provided to him. When contacted the petitioner Nos. 1 and 2 was informed 'about such wrongly dealings" then they assured the complainant that they are looking into the matter. However, in spite of the same he got a printed bill against the purported service provided to him. When contacted the petitioner Nos. 1 and 2 was informed 'about such wrongly dealings" then they assured the complainant that they are looking into the matter. Thereafter it further transpired that there were 11 mobile connections given in his favour and the bills were raised at fictitious manner. He informed the police about the said affairs. The accused company demanded Rs. 1,27,784-44 from the complainant followed by a demand notice and visits by some persons threatening him to pay the said money by way of extortion. ( 3 ) ACTING on the basis of the same the learned Additional Chief metropolitan Magistrate, Calcutta by its Order dated 19. 3. 2004 took cognizance and subsequently the learned Transferee Magistrate after examining the opposite Party No. 1 and perusing the documents available and after taking his Initial Ejahar found 'that there is sufficient ground for proceeding under section 385/420/511, 120b, I. P. C. against all the accused persons. '. Accordingly he issued Summons against all the accused persons under Sections 385, 420, 511 and 120b of the Indian Penal Code and fixed 12. 7. 2004 for Service return and appearance. ( 4 ) IT is at that stage the petitioners moved this Court seeking to invoke its powers under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the said Code) and a teamed Single Judge of this court admitted the application and directed stay of further proceeding for a limited period which was extended from time to time. ( 5 ) SHRI S. K. Basu, learned Senior Counsel being assisted by Shri L. V. Kumar and Shri S. K. Samanta submitted that the Petition of Complaint taken at its face value does not make out even a prima facie case against the petitioners and it would be necessary that the same is quashed even at this stage. He read out from the various portions of the Petition of Complaint as well as the Initial Ejahar. To illustrate his point that the petitioners, who are responsible Officers of a company, cannot have any manner of involvement with the said allegations. He submitted that the issuance of process against the petitioners and the other accused persons should be stayed. He read out from the various portions of the Petition of Complaint as well as the Initial Ejahar. To illustrate his point that the petitioners, who are responsible Officers of a company, cannot have any manner of involvement with the said allegations. He submitted that the issuance of process against the petitioners and the other accused persons should be stayed. He submitted that as the essential ingredients of the offence complained of being absent the existent proceeding was not maintainable against the present petitioners as well as against the other accused persons. It was the further submission of the earned Senior Counsel for the petitioners that as there was no question of dishonest inducement against the petitioners question of initiation of the proceeding against them under Section 420 of the Indian Penal Code was absolutely an abuse of process of the Court. Learned senior Counsel also submitted that there is no allegation either in the petition or against the other accused persons with regard to the committing substantive offences for which they are being tried in the instant case and more particularly the petitioners cannot be tried for other offences which are not substantive in nature. Lastly, learned Counsel for the petitioners referred to the provisions of Section 383 of the Indian Penal Code. He submitted that unless the ingredient of Section 383 of the Indian Penal Code is fulfilled the offence in respect of Section 385 of the Indian Penal Code is not made out and it was a fit case for quashing. ( 6 ) SHRI Ranabir Roy Chowdhury submitted that the Petition of complaint discloses a clear case against the petitioners on the basis of which cognizance has been taken by the learned Magistrate and process has been issued and at this stage the Court should not interfere. He submitted that there was absolutely no document in favour of the accused person to show that there was any application made on behalf of the opposite party No. 1 for providing the services of Reliance Mobile Telephone. The petitioners fictitiously raised bills in respect of service connections, which was not at all provided with an ulterior motive, and if at this stage the proceeding is quashed it will be of serious prejudice to the complainant. ( 7 ) (I) BEFORE THE HIGH COURT (Section 482 of the said code) :"482. The petitioners fictitiously raised bills in respect of service connections, which was not at all provided with an ulterior motive, and if at this stage the proceeding is quashed it will be of serious prejudice to the complainant. ( 7 ) (I) BEFORE THE HIGH COURT (Section 482 of the said code) :"482. Saving of inherent powers of High Court.-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 justice. " (II) BEFORE THE COURT QF MAGISTRATE (Sections 190. 200 and 204 of the said Code)"190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence, (b) ****************** (C) ****************** " (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. " "200. Examination of complainant.-A Magistrate taking cognizance of an offence of complaint shall examined upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : "provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-" (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or " (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 : "provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. " "204. " "204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-" (a) a summons-case, he shall issue his summons for attendance of the accused, or " (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself)some other Magistrate having jurisdiction. " (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. " (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. " (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the magistrate may dismiss the complaint. " (5) Noting in this section shall be deemed to affect the provisions of Section 87. " ( 8 ) POWERS of a Court in respect of Section 482 of the said Code has been crystallized by the decisions of the Supreme Court and the various High courts of the Country and the said position is as old as the mountains. The high Court can step in for invoking its jurisdiction under Section 482 of the said Code only where it is faced with a situation that the ends of justice has to be secured; or, that for prevention of abuse of process of Court. Its intervention in aid of Section 482 of the said Code is required; otherwise not. This Court feels that it would be carrying coal to New Castle if it sits to again define the Court's powers in respect of Section 482 of the said Code. ( 9 ) SECTION 190 of the said Code stipulates the power of cognizance to be taken by the Court. This position is also marinated by well-settled principles of law where the Magistrate finds there are facts which constitute such offence he can take cognizance and the word 'may' in sub-section (1)of Section 190 cannot be read as discretionary. ( 9 ) SECTION 190 of the said Code stipulates the power of cognizance to be taken by the Court. This position is also marinated by well-settled principles of law where the Magistrate finds there are facts which constitute such offence he can take cognizance and the word 'may' in sub-section (1)of Section 190 cannot be read as discretionary. At the time of taking of cognizance of the offence what the Court is required to see is only the averment made in the complaint whether it discloses a prima facie case or not and is not open to the Court to sift or appreciate the evidence at that stage and come to a conclusion that no prima facie case is made for proceeding further in the matter. ( 10 ) AFTERALL what is cognizance ? It neither has any mystic nor esoteric value it occurs as soon as a learned Magistrate applies his judicial mind to a bundle of facts which constitute an offence to enable the learned Magistrate to proceed in a particular direction. This position has been settled by the supreme Court long long ago. ( 11 ) SECTION 204 of the said Code : At the time of issuance of process it is the opinion of a Magistrate taking cognizance for forming an opinion on the basis of the materials available in the Complaint and the same which is brought on record by way of Initial Ejahar and once the learned Magistrate is of the opinion that the facts presented constitute an offence he is at liberty to issue process and cannot look into what would be the probable defence of the accused at that stage. This is the settled law. ( 12 ) VERY recently the Supreme Court in Subramanium Sethuraman v. State of Maharashtra and Am. , 2005 SCC (Cr) 242 : (2005)1 C Cr LR (SC) 256 held relying on the 3-Judge Bench decision of the Supreme Court in Adalat prasad v. Rooplal Jindal and Ors. , 2004 SCC (Cr) 1927 : 2004 C Cr LR (SC)1001. "that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the code. , 2004 SCC (Cr) 1927 : 2004 C Cr LR (SC)1001. "that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the code. Such an order made at preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. " ( 13 ) HOWEVER, the Supreme Court "held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. " ( 14 ) FURTHER the 3-Judge Bench of the Supreme Court in Adalat Prasad (supra) Itself held :"but after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. " ( 15 ) FROM a very close analysis of the Petition of Complaint this Court feels that there was sufficient materials for the learned Magistrate to issue process under Section 204 of the said Code as he was prima facie satisfied in that regard. Of course, the issuance of the said process can be questioned before this Court by invoking its jurisdiction under Section 482 of the said code. However, the fact remains notwithstanding the widest possible range of power this Court enjoys under Section 482 of the said Code it has to be exercised with utmost circumspection and sterile discretion, which would be discussed in the next chapter. However, the fact remains notwithstanding the widest possible range of power this Court enjoys under Section 482 of the said Code it has to be exercised with utmost circumspection and sterile discretion, which would be discussed in the next chapter. ( 16 ) IT is now a trite position fructified by galaxy of decisions since the days of R. P. Kapur ( AIR 1960 SC 866 ) that the powers-inherent powers vested under Section 482 of the said Code upon the High Court has to be exercised with great circumspection and in rarest of rare cases where there is formidable compulsion which warrant invocation of the said power by the court. ( 17 ) OTHERWISE not. ( 18 ) TRUE the Court has widest powers to quash the proceeding at any stage when it feels that it would be necessary to prevent abuse of process of a Court or securing the ends of justice but as noticed hereinabove as the same has to be done with utmost caution and it should not be exercised to cut short normal process of a Criminal Trial in an arbitrary fashion. ( 19 ) A. The Apex Court in Rashmi Kumar (Smt.) v. Mahesh Kumar bhada, 1997 SCC (Cr) 415 in a 3-Judge Bench decision held that :"the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court. "b. In K. Ramakrishna and Ors. v. State of Bihar, (2000)8 SCC 547 : 2001 C Cr LR (SC) 1 the Supreme Court held that :"the inherent powers of the High Court under Section 482 of the code of Criminal Procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any court or otherwise to secure the ends so justice. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. "c. More recently in State of A. P. v. Golconda Linga Swamy and Anr. , 2004 SCC (Cr) 1805 the Supreme Court held :". . . . . . . . . . . . . . . . . . . . . . . , the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, where factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. "d. In State of M. P. v. Awadh Kishore Gupta and Ors. , 2004 SCC (Cr)353 : 2004 C Cr LR (SC) 127 the Supreme Court similarly held that the inherent power vested under Section 482 of the said Code has to be exercised with utmost caution and very sparingly and carefully only to give effect to an order under the Code to prevent abuse of process of Court or to otherwise secure the ends of justice. (E) In Union of India v. Prakash P. Hinduja and Anr. , 2003 SCC (Cr)1314 : 2003 C Cr LR (SC) 752 the Supreme Court held that-"section 482, Cr. P. C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. P. C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated proceedings against an accused can be quashed by the High Court in exercise of power conferred by Section 482, Cr. P. C. has been settled by a catena of decisions of this Court rendered in R. P. Kapur v. State of Punjab, Madhu Limaye v. State of maharashta, Municipal Corpn. of Delhi v. Ram Kishan Rohtagi and Raj kapoor v. State. The matter was examined in considerable detail in state of Haryana v. Bhajan Lai and after review of practically all the earlier decisions, the Court in para 108 of the Report laid down the grounds on which power under Section 482, Cr. P. C. can be exercised to quash the criminal proceedings and basically they are : (1) where the allegations made in the FIR or compliant, 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 uncontroverted allegations made in the FIR 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, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection. " ( 20 ) PRAYER for quashing has to be understood in the guidelines laid down by the Apex Court in the aforesaid decisions. While proceeding to appreciate the submissions of the learned Senior Counsel this Court lest it loses sight should not forget the ratio of the said decisions even for a while. A plain reading of the Petition of Complaint in conjunction with the Initial ejahar shows that the Opposite Party No. 1 has been successful to make out a prima facie case against the accused persons. A plain reading of the Petition of Complaint in conjunction with the Initial ejahar shows that the Opposite Party No. 1 has been successful to make out a prima facie case against the accused persons. The averments made in the petition of Complaint cannot be dispelled outright at this stage, as it would in effect give rise to judicial pruning of a legitimate process of law, which has to be allowed to reach its logical conclusion. This Court is afraid that in the event the same is scuttled at this initial stage without the complainant being allowed to lay before the Court its evidence then it would not be apposite in the interest of justice. Unless evidence is led and the Complainant is given an opportunity to prove its case any decision arrived would be premature and would striking at the root at the sapling stage. ( 21 ) MORE discussion on the merit of the case would not be proper as it would be adjudication of the issue by this Court. ( 22 ) IN the light of the discussion this Court feels that the accused persons should submit themselves to the jurisdiction of the learned Magistrate in terms of the process issued against them directing them to answer the allegations made out in the Petition of Complaint. It is only thereafter it would be open to in obedience to the process issued against them for answering the allegations made out in the Petition of Compliant, to take all the points available to them at the stage as known to law. ( 23 ) HOWEVER, needless to say that any observation made in this application cannot be deemed to be construed by the learned Trial Court as an expression of opinion by this Court on the merit as the same would be deemed to have been made solely for the proper disposal of this Application. ( 24 ) IT would be open to the accused persons to pray for personal exemption before the learned Magistrate if they are so advised and any such prayer if made would have to be considered by the learned Magistrate in terms of the ratio of the decisions of the Apex Court governing the field. ( 24 ) IT would be open to the accused persons to pray for personal exemption before the learned Magistrate if they are so advised and any such prayer if made would have to be considered by the learned Magistrate in terms of the ratio of the decisions of the Apex Court governing the field. ( 25 ) IT would be further open to the accused persons to canvass all the points that they have taken in the body of this Application at the appropriate stage known to law which will have to be addressed by the learned Magistrate on its merit irrespective of the disposal of this Application. ( 26 ) APPLICATION dismissed.