In the matter of: Akshay Jain v. State of West Bengal
2016-02-18
JOYMALYA BAGCHI
body2016
DigiLaw.ai
JUDGMENT : Joymalya Bagchi, J. 1. In this revisional application, the petitioners have assailed a proceeding in Shakespeare Sarani Police Station Case No. 339 dated September 28, 2015 under Sections 420/465/468/ 471/120B of the Indian Penal Code. The proceeding is at the stage of investigation. 2. Mr. Deepak Prahladka, learned advocate appearing on behalf of the petitioners, submits that the gist of the allegation in the first information report is that documents, which were relied upon by the petitioners in the Company Law Board proceeding were forged. He submits that without resorting to Section 340 of the Code of Criminal Procedure criminal proceeding could not have been instituted by registering a first information report in view of the express bar under Section 195 of the Code of Criminal Procedure. 3. Mr. Prahladka further submits that the learned Magistrate mechanically sent the matter for investigation and the application under Section 156(3) of the Code of Criminal Procedure is, otherwise, not maintainable in law. He also submits that the ingredients in the alleged offences are not disclosed. On the other hand, Mr. Debasish Roy, learned advocate appearing on behalf of the opposite party no. 2, submits that the learned Magistrate sought for an enquiry as to whether the police authorities had acted on the prior complaints of the opposite party no. 2 and thereafter issued a direction under Section 156(3) of the Code of Criminal Procedure. 4. Mr. Roy relies on a decision of the Supreme Court in the case of Iqbal Singh Marwah & Another v. Meenakshi Marwah & Another, reported in (2005) 4 SCC 370 in support of his submission that the registration of first information report was not barred under Section 195 of the Code of Criminal Procedure. He further submits that the proceeding being at the stage of investigation, interference of this court is not called for. 5. Mr. Amartya Ghosh, learned advocate appearing on behalf of the State, opposes the prayer for quashing of the impugned proceeding. 6. The first issue raised by Mr. Prahladka with regard to the direction given by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure for registration of first information report without taking cognizance of the alleged offence is taken up for consideration.
6. The first issue raised by Mr. Prahladka with regard to the direction given by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure for registration of first information report without taking cognizance of the alleged offence is taken up for consideration. He relies on a decision of the Supreme Court in the case on S.N. Sharma v. Bipen Kumar Tiwari & Others, reported in AIR 1970 SC 786 in support of his contention that such direction is impermissible in law. In the said decision, the Apex Court, inter-alia, had observed that it is the duty of the police to register an information as first information report, if the same discloses cognizable offence. Similar power is vested under the Magistrate under Section 156(3) of the Code of Criminal Procedure, which, inter-alia, empowers a magistrate having requisite jurisdiction under Section 190 of the Code of Criminal Procedure or order an investigation of a cognizable offence by the officer in-charge of a police station. The expression "empowered under Section 190" used in the said sub-section merely refers to the jurisdiction of a Magistrate to take cognizance of the alleged offence in respect of which he is entitled to issue direction. Instead of taking cognizance under Section 190 of the Code of Criminal Procedure and proceeding under the Code, it is open to the Magistrate to pass direction for investigation under Section 156(3) of the Code of Criminal Procedure on an application/complaint provided the averments therein disclose cognizable offence [See Srinivas Gandhari v. SEPCO Power Electric Corporation, (2010) 8 SCC 206 (para 22 and 23)]. 7. Offences may be on various kind including those involving investigation into complicated facts or forensic examination by experts which may be an aggrieved victim. Under such circumstances, the Magistrate may instead of taking cognizance under Section 190 of the Code of Criminal Procedure and calling upon the complainant/victim to adduce evidence under Section 200/202 of the Code of Criminal Procedure may direct investigation of the offence by an officer in-charge of a police station under Section 156(3) of the Code of Criminal Procedure. To refuse to do so, may impair the process of investigation or collection of evidence to prove the crime and cause miscarriage of justice. 8.
To refuse to do so, may impair the process of investigation or collection of evidence to prove the crime and cause miscarriage of justice. 8. Hence, I do not find any jurisdictional error in the petitioners approaching the learned Magistrate and seeking a direction under Section 156(3) of the Code of Criminal Procedure for recording a first information report and investigating the cognizable offences in accordance with law. 9. Coming to the second issue raised by Mr. Prahladka as to whether the allegations of forgery can be investigated into, I find that the same has been answered in Iqbal Singh Marwah & Another (supra). The Apex Court held that the bar under Section 195 of the Code of Criminal Procedure shall apply only to acts of forgery, when the same is committed after the document has become custodia legis. Otherwise, the private complainant is entitled to put the criminal law into the motion on his own. 10. Accordingly, I do not find merit in the submission that the impugned criminal proceeding is liable to be set aside in view of the statutory bar under Section 195 of the Code of Criminal Procedure. 11. Finally, it has been argued that the allegation of forgery is patently absurd. It has been strenuously urged that the documents relied by the petitioners are genuine and those relied by the opposite party no. 2 are forged. Such allegation has been made to stultify the proceeding before the Company Law Board. I am of the opinion that such defence as to correctness or otherwise of the allegations in the first information report is a factual one and requires to be verified by the police during investigation but cannot furnish ground to quash the proceeding. 12. I, however, make it clear that pendency of the criminal proceeding cannot preempt the continuation of the proceeding before the Company Law Board which, needless to mention, may be continued if the same is still pending in accordance with law. With the aforesaid observations, revisional application is disposed of.