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Rajasthan High Court · body

2012 DIGILAW 1082 (RAJ)

Vivek Chordia v. State of Raj.

2012-04-27

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This misc. petition has been filed under Section 482, Cr.P.C. for quashing of the FIR No. 147/2004 and FIR No. 327/2008 registered at Police Station, Shyam Nagar, Jaipur. 2. Brief facts of the case are that FIR No. 147/2004 has been filed against the present petitioner registered at Police Station, Shyam Nagar, Jaipur for the offence under Section 406, IPC alleging that the petitioner is the Director of M/s. Chordia Buildcon Pvt. Ltd. And the said company is a proprietor of a firm M/s. United Township Corporation, Jaipur. The firm is engaged in the business of developing mini-township schemes. The complainant initially took a residential plot in the scheme and for which an amount of Rs. 50,000/- was paid. The complainant was required to make the entire payment as per the agreed time table but he failed to make such payment and as such the allotment letter could not be given to him as per the policy of the firm prevailing at that time. Inspite of this, provisional allotment letter was given to him for plot No. F. 62. When FIR has been filed, the matter has been amicably negotiated between the parties and in lieu of previously booked plot, further cheques have been given to the present petitioner against a new plot bearing No. C. 108 and it was agreed by the petitioner to allot plot No. C-108 to the complainant and confirmation has also been made on 21.6.2004. Thereafter the complainant filed a letter dated 21.6.2004 before the Police Station Shyam Nagar, Jaipur and conveyed that he has received the provisional allotment letter and had paid the cheques and he does not want any further action in the matter. Thereafter, the police filed a negative report in the concerned court declaring the matter to be of civil nature. 3. The further contention of the present petitioner is that map in which plot No. C-108 was situated, has not been approved by the Jaipur Development Authority. Then the petitioner made an alternative offer to the complainant for allotment of plot in the land for which the map has been approved by the Jaipur Development Authority on the same rate which was agreed to be paid by him in the year 2002. This proposal was sent to the complainant through counsel. The complainant could not convey the acceptance of this offer. This proposal was sent to the complainant through counsel. The complainant could not convey the acceptance of this offer. Then the petitioner was compelled to pay the entire amount deposited by the complainant with interest @ 9%. The above amount was returned under a registered post and the same was duly delivered to the complainant. The cheque is still in possession of the complainant. Thereafter, a protest petition has been filed against the final report which was submitted in FIR No. 147/2004 and the matter is still pending with the concerned court for recording of statement under Section 200 Cr.P.C. Meanwhile, the complainant has also filed FIR No. 327/2008 regarding the same incident on which FR has also been filed in the competent court. A letter was submitted by the Police Station, Shyam Nagar, Jaipur in the concerned court that on some points, they want to reopen investigation in FIR No. 147/2004 in which protest petitioner was pending and negative report was already filed in favour of the present petitioner and the file of the final report has been given for reinvestigation. The order is per see illegal. It has also been stated that on 3.1.2008, one other application has also been filed by the complainant on which a detail enquiry has been made and it was found that no offence has been committed by the present petitioner. 4. In this backdrop, the contention of the present petitioner is that investigation is abuse of process and should be quashed. This petition has been filed as investigation has been commenced for the same offence fifth time with ulterior motive. In FIR No. 147/2004, investigation was already concluded and now without any basis, order of re-investigation has been passed which is without jurisdiction and per see illegal. 5. The contention of the respondent is that the present petitioner is in connivance with the police. To make the protest petition infructuous, the police has joined the hands with the present petitioner and application for re-investigation has been submitted. 6. 5. The contention of the respondent is that the present petitioner is in connivance with the police. To make the protest petition infructuous, the police has joined the hands with the present petitioner and application for re-investigation has been submitted. 6. The contention of the present petitioner is that the order of re-investigation is forbidden by law and the petitioner has placed reliance on the judgments delivered in the cases Babi Bhai vs. State of Gujarat (2010) 12 SCC 254 ), P & H High Court Bar Association vs. State of Punjab (1994) 1 SCC 616 ), Virendra Prasad Singh vs. Rajesh Bhardwaj (2010) 9 SCC 171 ), Mithabhai Pashabhai Patel vs. State of Gujarat (2009) 6 SCC 332 ), Rama Chaudhary vs. State of Bihar (2009) 6 SCC 346 ) and State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC 383 ). 7. In the case of Babhubhai (supra), it has been held by the Hon'ble Apex Court as under:- "Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction." 8. In the case of P & H High Court Bar Association (supra) it has been held as under:- "We are conscious that the investigation having been completed by the police and charge-sheet submitted to the court, it is not for this Court, ordinarily, to reopen investigation." 9. In the case of Virendra Prasad Singh (supra) Hon'ble the Apex Court held as under:- "36. We may also refer to the observations made in another ruling in Mithabhai Prashabha Patel vs. State of Gurjat. In para 13 of the said decision, this Court has observed: (SCC petitioner. 337, para 13) "13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and /or further investigation by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction." 37. This Court further referred to a decision in Ramachandran vs. Respondent. Udhayakumar and observed therein: (SCC petitioner, 415, para 7) "7. At this juncture it would be necessary to take note of Section 173 of the Code. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction." 37. This Court further referred to a decision in Ramachandran vs. Respondent. Udhayakumar and observed therein: (SCC petitioner, 415, para 7) "7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evidence that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. 10. Further in the case of Mithabhai Parshabhai Patel (supra) it has been held as under:- "13. It is, however, beyond any cavil that `further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigation by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. 14. If the investigating authority, in terms of the provisions of the Code, could not ask for reinvestigation, we would have to proceed on the basis that this Court in its order dated 26.3.2008 only directed further investigation." 11. In Rama Chaudhary's case (supra) it has been held as under:- "16. Reinvestigation without prior permission is prohibited. 17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not 'fresh investigation' or `reinvestigation.' 12. In the case of A.S. Peter (supra) it has been held as under:- "A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not." 13. Looking at the above legal position it can be safely inferred that re-investigation in the same matter is prohibited but looking to the provisions of Section 173(8), the police has every right to further investigate the matter. 14. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not." 13. Looking at the above legal position it can be safely inferred that re-investigation in the same matter is prohibited but looking to the provisions of Section 173(8), the police has every right to further investigate the matter. 14. The contention of the present petitioner is that re-investigation has been ordered on the application of the police Station, Shyam Nagar and two points for investigation have also been stated in the application which facts have already been investigation in FIR No. 327/2008 and hence no further investigation is needed. 15. FIR No. 327/2008 and related Final Report has also been placed on record and a bare reading of above goes to show that these two facts have already been investigated by the concerned authorities and in the light of above, there is no need for any investigation by the police much less the re-investigation. Hence it can be safely inferred that the application filed by the Police Station Shyam Nagar, is for re-investigation which is prohibited and it cannot be termed as further investigation as these points have already been investigated in FIR No. 327/2008. 16. It is not in dispute that a protest petition has been filed against the negative report in FIR N. 147/2004 and recording of statement of the complainant was under process before the trial court. At this juncture application for investigation was presented by the Police Station, Shyam Nagar. The contention of the present petitioner is that once proceedings have been started on the protest petition under Section 200, the magistrate cannot opt for investigation by the Police until the proceedings are reached at the stage of Section 202 and reliance in this connection has been placed on the judgment reported in the cases of Ashok and Ors. vs. State of U.P. (1994 Cr.L.J. 2132), Dilawar Singh vs. State of Delhi (2007) 12 SCC 641 ), Dharmeshbhai Vasudevbhai vs. State of Gujarat (2009) 6 SCC 576 ) and Rameshbhai Pandurai Hedau vs. State of Gujarat (2010) 4 SCC 185 ). 17. In the case of Ashok (supra) it has been as under:- "This Court in the case "Pancham Singh vs. State of U.P." reported in 1998 All Cri. C 217: (1988 All LJ 888) has held: The legal position is quite clear. 17. In the case of Ashok (supra) it has been as under:- "This Court in the case "Pancham Singh vs. State of U.P." reported in 1998 All Cri. C 217: (1988 All LJ 888) has held: The legal position is quite clear. Once a final report is submitted against somebody and simultaneously a charge sheet is submitted against the others, if the Magistrate takes cognizance on the basis of the charge-sheet and accepts the final report, a protest petition will lie and if such protest petition has all the ingredients mentioned in Section 2(d) of the Code of the Criminal Procedure it can be treated as a complaint and proceedings of complaint case may go on involving Section 200 and 202, Cr.P.C. The Magistrate can then pass an order according to law." 18. In the case of Dilawar Singh (supra) Hon'ble the Apex Court has held as under:- "9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. For direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, 10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him." 19. In Dharmeshbhai Vasudevbhai's case (supra), the Apex Court held as under:- "10. Yet again in Devarapalli Lakshminaryan Reddy vs. V. Narayana Reddy, this Court, upon comparison of the provision of the old Code and the new Code, held as under: (SCC petitioner. 258, para 17) "17. In Dharmeshbhai Vasudevbhai's case (supra), the Apex Court held as under:- "10. Yet again in Devarapalli Lakshminaryan Reddy vs. V. Narayana Reddy, this Court, upon comparison of the provision of the old Code and the new Code, held as under: (SCC petitioner. 258, para 17) "17. Section 156(3) occurs in Chapter XII, under the caption: `information to the police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: `Of complaints investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(2). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case, the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once take such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation `for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him." 20. In the case of Rameshbhai Pandurao Hadau (supra) it has been held as under:- "26. In the case of Rameshbhai Pandurao Hadau (supra) it has been held as under:- "26. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case." 21. Looking at the above legal position, when the magistrate has invoked the provisions of Section 200 Cr.P.C., it cannot revert back and order for the investigation. The only manner in which the investigation can be ordered is 202 Cr.P.C. which is not to initiate a fresh investigation but to assist the magistrate in proceeding already instituted upon a complaint before him. When the factual matrix of this case goes to show that the proceedings under Section 200 Cr.P.C. are still pending before the magistrate, the order for re-investigation was without jurisdiction and hence the order dated 19.1.2008 passed by the trial court for re-investigation of the case is perverse, without jurisdiction and liable to be quashed. 22. The other contention of the present petitioner is that the protest petition is to be treated as separate and fresh complaint and investigation should not be ordered and he has placed reliance upon the judgment reported in the cases of Kishan Lal vs. Dharmendra Bafna (2009) 7 SCC 685 ) wherein it has been held as under: "11. It is now a well-settled principle of law that when a final form is filed by any investigation officer in exercise of his power under sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency." 23. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency." 23. It is not in dispute that in FIR No. 147/2004 a final report has been filed by the police and thereafter protest petition has been filed by the complainant which is not in any way a fresh petition but it will be treated to be in continuation of the case instituted and investigation by the police and it cannot be treated as separate or fresh complaint. 24. The other contention of the petitioner is that the matter is relating to civil dispute and to pressurize the settlement, it has been given a cloak of criminal offence. Non-refund of advance amount or non-compliance of the agreement arrived at between the parties, does not amount to offence under Section 406 and 420 IPC and reliance has been placed on the judgments reported in the cases of Murari Lal Gupta vs. Gopi Singh (2005) 13 SCC 600), Hotline Teletubes and Components Ltd. vs. State of Bihar (2005) 10 SCC 261 ), Dalip Kaur vs. Jagnar Singh (2009) 14 SCC 696 ). 25. The learned counsel for the petitioner has further relied upon the judgments reported in the cases of India Oil Corporation vs. NEPC India (2006) 6 SCC 736 ), G. Sagar Suri vs. State of U.P. (2000) 2 SCC 636 ). 26. It is true that if no offence is made out by the bare reading of the FIR, the proceedings could not be continued. The contention of the respondents is that FIR No.147/2004 has already been investigated by the police and Final Report has already been filed. Now the present petitioner is pursuing his legal right in competent court and the matter is pending under Sec. 200 Cr.P.C. for consideration before the trial court, the petitioner for quashing the FIR is misconceived. 27. It is not in dispute that the FIR No. 147/2004 has been lodged against the present petitioner 8 years back and the matter has been investigated by the police. 27. It is not in dispute that the FIR No. 147/2004 has been lodged against the present petitioner 8 years back and the matter has been investigated by the police. Now protest petition is under consideration before the competent court and when the complainant is pursuing his legal right available to him under the provisions of Criminal Procedure Code, the proceedings cannot be succumbed by invoking inherent powers of this Court under Section 482, Cr.P.C. The competent court is seized with the matter and he is having option available under Section 202, 203 and 204 Cr.P.C. Proceedings are going according to the legal provisions cannot be terminated abruptly. 28. The next contention of the present petitioner is that second complaint regarding the same offence is prohibited and reliance has been placed on the judgment reported in the cases of T.T. Antony vs. State of Kerla (2001) 6 SCC 181 ). 29. As far as FIR No. 147/2004 is concerned, it cannot be termed that it is a second FIR. It was the first FIR which was presented by the complainant on which investigation has been done. On second FIR, bearing No. 327/2008 investigation has been done and Final Report has been submitted in view of the law laid down in T.T.Antony's case (supra). 30. The contention of the present petitioner is that looking to the provisions enumerated in the State of Haryana vs. Bhajan Lal (1992) suppl (1) SCC 335), his case falls under the category elaborated in para 1, 3 and 7 which reads as under:- "(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. (3) Where the uncontroverted allegations made in the FIR or complainant 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. (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." 31. (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." 31. There is no dispute regarding the law laid down in Bhajan Lal's case (supra) but looking to the facts of the present case, when the matter has already been seized with the competent court under Section 200, Cr.P.C. as discussed earlier, the proceedings should not be quashed. 32. The other contention of the present petitioner is that the proceeding in FIR No. 327/2008 should also be quashed but, admittedly, no criminal proceedings are pending regarding FIR No. 327/2008. The matter has already been investigated by the police and Final Report has been filed before the competent court and the law laid down in Kishan Lal vs. Dharmendra Bafna (supra) clearly suggest that when the final report is filed by the investigating officer, the complainant has a right to file a protest petition. The learned Magistrate can proceed on the protest petition, if any protest petition is filed, the magistrate otherwise also can always accept the report or can take cognizance under the provisions of Section 190 Cr.P.C. and when a full scheme is provided under the provisions of the Code, this Court will not interfere in the proceedings which are running under the prescribed procedure of the Code invoking inherent powers of this Court. Earlier petition filed by the present petitioner for quashing of FIR No. 327/2008 has been dismissed as having become infructuous as the police has filed final report again on same stage, of proceedings, similar petition has been filed which is obviously non-maintainable as stated earlier that no criminal proceedings are pending against the present petitioner in regard to F.I.R. No. 327/2008. 33. Looking at the above, the petition regarding quashing of FIR No. 147/2004 and 327/2008 registered at the Police Station, Shyman Nagar, Jaipur is hereby dismissed but the order dated 19.1.2008 of trial court sending back the Final Report submitted in F.I.R. No.147/2004 for re-investigation is hereby quashed.