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2012 DIGILAW 571 (GAU)

Vivek Sudhakar Chittewan v. Mukut Mehta

2012-05-08

INDIRA SHAH

body2012
JUDGMENT Indira Shah, J. 1. This criminal revision is directed against the order dated 15-06-2011 passed by the learned Chief Judicial Magistrate, Shillong in C.R. Case No. 669(s) 2011 talking cognizance of the offence under Sections 216/201/420/465/468/506/120B/34, IPC. The facts, leading to filing of this revision, in brief, are that the respondent lodged an FIR against Ms. Relita P. Lyngdoh Talang and the police on completion of investigation, submitted the charge sheet against Ms. Relita P. Lyngdoh Talang, which has been registered as G.R. Case No. 148(s)/2009. Although, one Pushpa Narain Shetty was also arrayed as accused in the said FIR being associates of Ms. Relita P. Lyngdoh Talang, no charge sheet' was submitted against her. The respondent then filed a complaint case being No. 298(S)/2010 against Pushpa Narain Shetty and others. The Court took cognizance of the offence and issued summons to said Puspha Narain Shetty. But: the summons could not be served upon. Thereafter, the respondent/complainant made inquiry at the address of said Pushpa Narain Shetty and came to know that she had transferred her flat/house No. 304 in the building No. F-1 situated at Rashmi Complex, Mangal Nagar, Mira Road (e), Thane-401107, Maharashtra through one, Md. Khalid Khan, a Real Estate Consultants, Lucky Homes, Crystal Plaza, Shop No. 12, Mira Road (E), Thane. Then another complaint was lodged by the respondent wherein, it is alleged that the accused i.e. the present petitioner who knew Pushpa Narain Shetty and had some business connection with her, refused to divulge her present address. It is also alleged in the complaint that the accused warned the complainant not to proceed against Pushpa Narain Shetty, in the matter, any further or else face the consequences thereof. It is further alleged that the present petitioner is an accomplice of said Pushpa Narain Shetty in the cheating case. The learned Chief Judicial Magistrate recorded the statement of the complainant and one witness and took cognizance of the offence by issuing summons to the petitioner. 2. I have heard Ms. S.G. Momin, learned counsel appearing on behalf of petitioner. 3. The learned counsel appearing for the petitioner has submitted that learned Chief Judicial Magistrate, in the instant case, without holding any proper inquiry under Section 202 of the Code of Criminal Procedure, 1973 issued process against the petitioner. 2. I have heard Ms. S.G. Momin, learned counsel appearing on behalf of petitioner. 3. The learned counsel appearing for the petitioner has submitted that learned Chief Judicial Magistrate, in the instant case, without holding any proper inquiry under Section 202 of the Code of Criminal Procedure, 1973 issued process against the petitioner. Moreover, the petitioner is a resident of Mumbai and as per Section 202 of the Code of Criminal Procedure, 1973; the Court has no jurisdiction against the accused, who is residing beyond the jurisdiction of the Court to inquire the case himself or to direct the investigation to be made by a police officer. She has prayed for quashing of the complaint against the petitioner. 4. The learned counsel for the respondent, on the other hand, has submitted that in the complaint petition, filed by the complainant discloses a prima facie case against the accused-petitioner. The discretion under Section 482, Cr PC should be exercised only in the exceptional cases. Relying on his submissions, he has cited the cases of Harishchandra Prasad Mani and Others v. State of Jharkhand and Another, (2007) 15 SCC 494 , Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474 , M.N. Damani v. S.K. Sinha and Others, (2001) 5 SCC 156 and Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1 , wherein, it has been held that inherent power under Section 482 though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. Series of decisions have been rendered by the Hon'ble Supreme Court that cognizance cannot be taken unless there are at least some materials indicating the guilt of the accused. 5. Section 201 of the Cr PC reads as under :-- Procedure by Magistrate not competent to take cognizance of the case.--If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall-- (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. 6. 6. Section 202 of the Cr PC defines-- Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or 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 : Provided that no such direction for investigation shall be made-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 7. Here in this case, admittedly, the accused-petitioner has been residing in Maharashtra, which is beyond the jurisdiction of the learned Chief Judicial Magistrate, Shillong, Meghalaya. Moreover, it appears from the complaint petition filed by the respondent that for the offence alleged in the complaint petition, the respondent, lodged an FIR, which was charge sheeted. The subsequent complaint has arisen out of the same transaction. No separate incident and no distinct offence has been alleged in the complaint petition. Moreover, it appears from the complaint petition filed by the respondent that for the offence alleged in the complaint petition, the respondent, lodged an FIR, which was charge sheeted. The subsequent complaint has arisen out of the same transaction. No separate incident and no distinct offence has been alleged in the complaint petition. In the case of T.T. Antony v. State of Kerala, reported in (2001) 6 SCC 181 , wherein, it has been held that for the same cognizable offence or same occurrence, two FIRs have been lodged and it was held that there can be no second FIR and fresh investigation on receipt of every subsequent information in respect of the same cognizable offences or same occurrence giving rise to one or more cognizable offences. There cannot be any controversy that sub-section 8 of Section 173, Cr PC empowered the police to make further investigation obtaining further evidence (both oral and documentary) and forwarded further report or reports to the Magistrate. However, it was held in the case of Nirmal Singh Kahlon v. State of Punjab, reported in (2009) 1 SCC 441 that the second FIR would be maintainable not only there were different versions but when new discovery is made on factual foundation, discovery may be made by the police authorities at a subsequent stage. Discovery about larger conspiracy can also surface another proceeding. 8. Here in this case, the discoveries have been made by the complainant himself and not by the police after filing the charge sheet. Therefore, on receipt of their complaint lodged by the respondent, the learned trial Court ought to have been directed the police to further investigate the case as per the provisions of Section 173, Cr PC The Court has the power under Section 319, Cr PC to implead any person as accused if he finds prima facie materials that the said person has committed any offence for which such person could be tried together with the accused. But in this case, the learned Chief Judicial Magistrate, Shillong neither considered the provisions of Section 173, Cr PC nor the provisions of Section 319, Cr PC. But in this case, the learned Chief Judicial Magistrate, Shillong neither considered the provisions of Section 173, Cr PC nor the provisions of Section 319, Cr PC. There is no observations by the learned Chief Judicial Magistrate that the present C.R. Case is distinct from the earlier G.R. Case No. 148(S) 2009 and without proper inquiry, under Section 202, Cr PC, learned Chief Judicial Magistrate took the cognizance against the petitioner, who has been residing beyond the jurisdiction of the Court. In view of the above, I find that it is a fit case to interfere by this Court and therefore, the impugned order dated 15-06-2011 passed by the learned Chief Judicial Magistrate, Shillong in C.R. Case No. 669(s) 2011 is liable to be set aside. Accordingly, it is set aside. The learned trial Court, however, may direct the police for further investigation or may implead the person as accused if there is any material against the person as per provisions of Section 173 or Section 319 of Criminal Procedure, 1973. The Criminal Petition stands allowed. There shall be no order as to cost. Petition allowed.