Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 124 (JHR)

Basudeb Bandyopadhyay v. State of Jharkhand

2006-02-16

M.Y.EQBAL

body2006
Order Heard learned counsel appearing for the petitioners. No one appears on behalf of the Opp. Parties. 2. In the instant application filed under section 482 Cr.P.C.. the petitioners have prayed for quashing the entire criminal prosecution in Complaint Case No. 164 of 2001, pending in the court of Judicial Magistrate, 1st Class, Dhanbad and also the order dated 18.1.2001 whereby the learned Magistrate after accepting the final report submitted by the police directed the complainant to proceed afresh on his original complaint. 3. The facts of the case lie in a narrow compass: The opposite party no. 2 filed complaint petition against the Director and other officers of the Company alleging inter alia that they in connivance with each other fraudulently and dishonestly induced the complainant to purchase three numbers of Tata Wheel Loaders in the year 1993-94. The opposite party no. 2 purchased the vehicle on the alleged assurance given by the petitioners that there will be no trouble with regard to smooth movement, running and operation of the vehicle. It was alleged that subsequently, some defects were found in the vehicle leading to huge loss caused to the complainant. 4. After recording the statement of the complainant, the matter was referred to the police for investigation. The police after making thorough investigation submitted final form reporting that no case is made out as alleged by the complainant. 5. Parties were heard on the final form submitted by the police on 18.1.2001 and after hearing the parties the Chief Judicial Magistrate, Dhanbad passed order dated 18.1.2001 accepting the final form, but at the same time directed the complainant to proceed with the original complaint treating the same as the complaint case. Consequently, the same complaint petition was registered afresh as C.P. No. 164/2001. 6. The moot question that falls for consideration is as to whether the Magistrate who has accepted the final form can direct the complainant to proceed with the original complaint case. 7. Before appreciating the submissions made by the learned counsel, I would like to consider the provisions of Section 190 to 200 Cr. P. C. From reading the aforesaid provisions, it is manifestly clear that on receipt of complaint, the Magistrate has several courses open to him. 7. Before appreciating the submissions made by the learned counsel, I would like to consider the provisions of Section 190 to 200 Cr. P. C. From reading the aforesaid provisions, it is manifestly clear that on receipt of complaint, the Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statement of the complainant and the witnesses under section 200 Cr.P.C. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203: If in his opinion, there are sufficient ground for proceeding he may issue process under section 204 Cr.P.C. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. It is well settled that in the first instance on receipt of complaint the Magistrate may instead of taking cognizance of the offence, order an investigation under section 156(3) Cr.P.C. The police will then investigate and submit a report under section 173 (1) Cr.P.C. On receipt of the police report, the Magistrate may do one of three things: (i) he may decide that there is no sufficient ground for proceeding further and drop action, (ii) he may take cognizance of the offence under section 190(1)(b) on the basis of the police report and issue process, this he may do without being bound in any manner by the conclusion arrived at by the police in their report, (iii) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. 8. In the case of Tula Ram and Ors. 8. In the case of Tula Ram and Ors. vs. Kishore Singh ( AIR 1977 SC 2401 ) the question that falls for consideration before the Supreme Court was whether or not the Magistrate after receiving the complaint and after directing investigation under section 156(3) Cr.P.C. and on receipt of final form from the police can issue notice to the complainant, record his statement and the statement of other witnesses and then issue process under section 204 Cr.P.C. Their Lordships answering the aforesaid question observed as under: In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellant. The High Court has discussed the point's involved threadbare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case, the following legal proposition emerge: 1. That a Magistrate can order investigation under S. 156 (3) only at the pre-cognizance stage. that is to say, before taking cognizance under sections 190, 200 and 204 and when Magistrate decide to take cognizance under the provisions of Chapter XIV he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an inquiry as contemplated by Section 202 of the Code. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) he can peruse the complaint and if satisfied that there -are sufficient grounds for proceeding, he can straight way issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate postponed the issue of process and direct an inquiry by himself. (c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police. (b) The Magistrate postponed the issue of process and direct an inquiry by himself. (c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the inquiry ordered is not satisfied that there are sufficient ground for proceeding he can dismiss the complaint. 4. Where a Magistrate order investigation by the police before taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above. " 9. In the instant case, after the final form was submitted by the police under section 173 Cr.P.C. learned Magistrate after hearing the complainant and the counsel for the State passed the following order on 18.1.2001 which is impugned in this application. "Record put up for order, I have already heard the learned lawyer of the informant and A. P. P. on Final Form submitted by the police in the case. Perused the case record and case diary also. On the basis of copy of the written complaint filed by the informant in Court this case was registered against eight named accused persons for the offences u/ss. 120(8)/420/467/468/741 I.P.C. but after investigation Final Report has been submitted by the Police in the case showing the alleged dispute of CMI Nature. After submission of final report notice was issued to the informant on which protest-cum-objection petition filed by him praying not to accept the final report submitted by the Police and to enquire the case by the Court. In this petition the informant has stated that entire investigation made by the Police is vague, biased slipshod and not sustainable in law and he is ready to produce evidence in support of this case. After going through the case diary I do not find sufficient evidence to take cognizance against the accused persons. In this petition the informant has stated that entire investigation made by the Police is vague, biased slipshod and not sustainable in law and he is ready to produce evidence in support of this case. After going through the case diary I do not find sufficient evidence to take cognizance against the accused persons. Thus considering the fact and circumstances of the case, Final Form submitted in the case by the Police is hereby accepted and informant of the case is directed to proceed on original complaint filed by him in Court treating the same as complaint case. Put up on 14.2.2001 for examination of the complainant on S.A. Accordingly the police case is disposed of. Office to deposit the record in R. R. " 10. From bare perusal of the aforesaid order, it is evident that the learned Magistrate after holding that there is no sufficient evidence to take cognizance against the accused persons accepted the final form submitted by the police but at the same time directed the complainant to proceed 'on original complaint filed by him in court treating the same as complaint case. In my opinion, learned Magistrate has not correctly appreciated the provisions of Code of Criminal Procedure and the law settled by the Supreme Court referred to hereinabove and has committed serious irregularity in passing the said order. But the impugned order will not prejudice the petitioners for the reason that neither the Court has taken cognizance nor has issued any process against the petitioners and they are not supposed to participate in the proceeding unless cognizance is taken against them by the Magistrate. 11. The second question that falls for consideration is as to whether the entire proceeding is liable to be quashed for the reason that the allegation does not constitute an offence rather it is civil dispute. From perusal of the order-sheet it transpires that after the impugned order was passed the Magistrate proceeded to examine the complainant and the witnesses. 12. The second question that falls for consideration is as to whether the entire proceeding is liable to be quashed for the reason that the allegation does not constitute an offence rather it is civil dispute. From perusal of the order-sheet it transpires that after the impugned order was passed the Magistrate proceeded to examine the complainant and the witnesses. 12. After examining the complainant and other witnesses, the Magistrate passed reasoned order dated 24.8.2001 holding that complaint petition do not constitute ingredient for the offence under sections 120(B), 466, 467, 468, 471, I.P.C. However, the Magistrate held that a case' is made out under section 418 I.P.C. From perusal of the order dated 24.8.2001, it is manifestly clear that the allegation made by the complainant against the petitioner relates to civil dispute. This find supports from the fact that complainant filed a suit being Title Suit No. 46/99 for declaration that the assurance of stocking spares parts constitute an enforceable agreement of warranty and breach and therefore, the defendants are liable for damages. The suit was dismissed by the learned Sub-Judge II, Dhanbad in terms of judgment dated 4.12.2003. Learned Sub-Judge decided all the issues against the complainant and held that the manufacturer namely, TELCO is not liable to pay damages or compensation. Considering all the facts of the case, I have no doubt in my mind in holding that that the complaint case filed by the complainant against the petitioner is mala fide and continuance of the proceeding will amount to abuse of the process of law. 13. For the reasons aforesaid, this application is allowed and the entire complaint petition being C.P. No. 164/2001 and the orders passed therein are quashed.