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Madhya Pradesh High Court · body

2019 DIGILAW 416 (MP)

Manoj Singhal v. Rajendra Singh Bapna

2019-06-18

VANDANA KASREKAR

body2019
ORDER 1. This petitioners have filed the present petition under section 482 of CrPC for quashment of private complaint dated 26.5.2017 which is pending before the JMFC, Indore for offences under sections 323, 294, 500 and 506-B of IPC. 2. The respondent No.1 was initially appointed as Manager Pharmacy with Bombay Hospital Indore vide appointment order dated 3.11.2003. After employment, the services of the respondent seemed satisfactory, however, on account of perpetual nuisance and poor work performance, the respondent No.1 was issued a warning for which he also submitted a written apology. Inspite of warnings, the performance of respondent No.1 remained poor and, therefore, his services were terminated vide order dated 30.5.2016. When the Management issued a termination letter to respondent, he started throwing tantrums and became very aggressive. Respondent No.1 also tried to commit suicide by trying to jump from the first floor of the hospital, but was saved by the Management just in time. Intimation to this effect was also given to Lasudiya Police Station on 30.5.2016. 3. On the contrary, the respondent No.1 filed a frivolous and false complaint with Police Station Lasudiya that, the petitioner No.1 man-handled the complainant and also abused him and threatened him. Being aggrieved from the said termination order, the respondent No.1 filed a suit under Order 7 rule 1 of CPC for declaration, permanent injunction and damages to the tune of Rs.1,21,17,312/- before the XVth Additional District Judge, Indore. 4. The petitioners filed an application under Order 7 rule 11 of CPC for dismissal of suit. This application was allowed and the suit filed by the respondent no.1 was dismissed. Thereafter, the respondent no.1 filed a complaint before the learned Judicial Magistrate First Class, Indore for offences under section 323, 294, 500 and 506-B of IPC, on 26.5.2017. The learned JMFC has taken the cognizance of the said complaint. Being aggrieved by that, the petitioners have filed the present petition for quashment of the complaint. 5. Learned Senior Counsel appearing on behalf of the petitioners submit that the complaint filed by the respondent No.1 is totally baseless, frivolous and is made with a view to harass and falsely implicate the present petitioners with a malafide intention to settle his personal vendetta. He furthe submits that the respondent has also filed a civil suit claiming damages and also chose to file a private complaint for the said offences. He furthe submits that the respondent has also filed a civil suit claiming damages and also chose to file a private complaint for the said offences. Thus, the allegations made in the private complaint are nothing, but an afterthought. He further argues that a bare perusal of the entire chain of sequences would indicate that the said complaint has been filed only with a malafide intention for wrecking vengeance upon the petitioners. He submits that on the basis of the allegations made in the complaint, no offence is made out against the present petitioners. The respondent No.1 has alleged in the complaint that the petitioners published an advertisement in the newspaper regarding want of Manager Pharmacy, inspite of the said post being held by the respondent with an intent to defame the complainant, however, on the basis of these allegations, no case for defamation can be ascribed against the present petitioners. 6. Learned Senior Counsel for the petitioners relied on the judgment passed by the Hon'be Apex Court in the case of State of Haryana & Ors. v. Bhajanlal & Ors. Reported in AIR 1992 SC 604 , wherein it has been held that whenever a Court is of the opinion that a criminal machinery has been resorted to only for the purposes of harassing a a person and to settle personal vendetta then it is the duty of the Court to counter such frivolous litigation and the Court under section 482 CrPC has ample power to quash such a litigation. 7. That, event the Lasudiya Police Station (Annexure-P/10, Page No. 62) has held that the complaint filed by the respondent No.1 seems to have been filed being aggrieved by his termination order by the management and hence, the petition deserves to be allowed. 8. Where the Court is being utilized for any oblique purpose then in such cases it becomes a duty of Courts to quash such cases. 9. That, the respondent No.1 has given a list of 33 witnesses, (Page 54 of petition) which he wishes to summon. It is submitted that some of the witnesses are senior officials residing at Bombay, who have no nexus with the present case at hand. It is not even mentioned as how these witnesses are material and why is their presence material. It is submitted that some of the witnesses are senior officials residing at Bombay, who have no nexus with the present case at hand. It is not even mentioned as how these witnesses are material and why is their presence material. The present witnesses have been arrayed as witnesses merely for harassing them in as much as being at Bombay they could not have been arrayed as an accused in the present mater. There is no connection or even an averment as regards how the senior officials residing at Bombay would have any nexus with the present litigation which only indicates that the idea of the respondent No.1 is to merely harass the senior officials by calling them at Indore which clearly cannot be allowed. 10. That, the respondent tried to commit suicide the moment he received the termination letter(Annexure-P/3, Page No.17), which was duly received by him on 30.5.2016, which was duly intimated to the P.S. Lasudiya(Annexure-P/4), Page No.19). As a counter to the aforementioned complaint, respondent No.1 filed a frivolous complaint that he was threatened with life and further alleged assault. Even this complaint was silent about any form of defamation which clearly spells out that on two occasions where the respondent No.1 could have reported the alleged defamation, did not do so and, hence, it reaches to only one logical conclusion that the present complaint is a counter blast to his termination. 11. Learned Senior Counsel for the petitioners also placed reliance on the judgment passed by the apex Court in the case of Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017)13 SCC 369 , The Hon’ble apex Court has observed as under : "Inherent power given to the High Court under section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to 8 be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under section 482 CrPC to quash the proceeding. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under section 482 CrPC and quashed the criminal proceedings." 12. It is submitted that the present case is nothing but an arm twisting method to gain oblique motives and hence being based on malice this Hon’ble Court definitely has the Jurisdiction to quash the same. 13. That, the Learned trial Court after going through the averments of the complaint has chosen to examine the complainant and the witnesses, which means that the Learned trial Court has already taken cognizance in the matter. Once a Court takes cognizance in the matter then the same has to reach its logical conclusion and hence, in this wake of the matter it cannot be said that the petition is premature. 14. Learned Senior Counsel further relied on the judgment passed by the Apex Court in the case of State of Karnataka v. M. Devendrappa and Anr., [ (2002)3 SCC 89 ], it was held that while exercising powers under section 482 CrPC, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It was further held as under : "It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto". 15. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto". 15. A bare perusal of the aforementioned law makes it amply clear that in a case where a Court finds that there has been a case or a proceeding instituted on malice or the criminal machinery has been misused, the Court may quash any such proceedings and since cognizance has already been taken in the matter, the same can be quashed under section 482 of the code of criminal procedure. He further submits that the respondent No. 1 has alleged in the complaint that the petitioners published an advertisement in the news paper regarding want of a Manager Pharmacy inspite of the said post being held by the Respondent with an intent to defame the complainant, however, a bare perusal of the same would indicate that the said advertisement was for want of an Assistant Manager/ Manager Pharmacy. It is noteworthy that the Medical Store in the Hospital runs 24 hours and the purpose of the advertisement was not to defame the Complainant but was to run the store efficiently. Thus, in this view of the matter no case of defamation can be ascribed against the present petitioners. 16. In the light of the aforesaid, he submits that the complaint is merely abuse of process of law and, hence, deserves to be dismissed on this very ground. 17. The respondent no.1 has filed reply of the said complaint. A preliminary objection has been taken by the respondents stating that the present application is not maintainable. He submits that after filing of private complaint by the respondent, the Magistrate is in the process of recording preliminary evidence under the provisions of section 200 of CrPC. The learned Magistrate has not yet applied his mind and after recording of the evidence if the Court comes to the conclusion that there is no sufficient grounds to proceed further, he may even dismiss the complaint under section 203 of CrPC. This Court cannot usurp the jurisdiction of the learned Magistrate by invoking the powers under section 482 of CrPC. This Court cannot usurp the jurisdiction of the learned Magistrate by invoking the powers under section 482 of CrPC. In the present case, he submits that the Magistrate has not yet applied his mind and not issued summons on the private complaint field by the respondent No.1. The respondent has further stated that quashment of any FIR or private complaint under the provisions of section 482 of CrPC is permissible only in exceptional circumstances and, that too, to meet the ends of justice and to prevent the abuse of process of law. By mere reading of the private complaint makes out a case against the accused person. The petitioners in the present petition has made several false statements, either to prejudice the Court or to get undue advantage from this Court. However, on this ground also the present petition deserves to be dismissed. 18. Heard learned counsel for the parties and perused the record. 19. In the present case, the respondent No.1 has filed a private complaint before the JMFC, Indore for offence under sections 294, 323, 500 and 506 B of IPC. Thereafter, the Magistrate has taken cognizance in the matter. The petitioners have filed the present petition for quashment of the complaint firstly, on the ground that name of several irrelevant witnesses are given by the respondent along with the complaint. Secondly, on the ground that civil suit filed by the respondent No.1 was dismissed by the trial Court in respect of similar matter. 20. The petitioners have further stated that as per report dated 12.9.2017 submitted by the Police Station Lasudiya stating the complaint to be false and finding that the respondent No.1 has attempted to commit suicide and lastly, the petitioners have contended that the complaint filed by the respondent No.1 is false and made only with personal vendetta. 21. Counsel for the respondent No.1 has raised preliminary objection stating that the present petition is pre-mature, as the Magistrate has not even taken cognizance in the matter. The Magistrate is yet to apply its mind to decide whether notices under section 204 of CrPC is to be issued or not and, thus no order/proceeding by which petitioners are said to be aggrieved, has been passed by the Magistrate. Unless notices are issued to accused, the accused has no right to say in the proceeding. The Magistrate is yet to apply its mind to decide whether notices under section 204 of CrPC is to be issued or not and, thus no order/proceeding by which petitioners are said to be aggrieved, has been passed by the Magistrate. Unless notices are issued to accused, the accused has no right to say in the proceeding. For the said purpose, he had relied on the judgment passed by the apex Court in the case of Chandra Deo Singh v. Prokash Chandra Bose reported in AIR 1963 SC 1430 . Relevant portions from Paragraphs 6 to 12 of the said judgment is reproduced as under : 6. The certificate was sought by the appellant on four grounds. The first ground was that respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process. The second ground was that the test propounded by the learned single judge for determining the question whether any process should be issued by the Court was erroneous. The third ground was that a Magistrate making an enquiry under s. 202 of the Code of Criminal Procedure had no jurisdiction "to weigh the evidence in golden scales" as was done in the present case. 7. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued ; nor can he examine any witnesses at the instance of such a person. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued ; nor can he examine any witnesses at the instance of such a person. of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No. 1 that the very object of the provisions of Ch. XVI of the' Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects, behind the provisions of section 202, CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. This Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigsonkar (1), may usefully be quoted "The enquiry is for the purpose of ascertain- ing the truth or falsehood of the complaint that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the 'accusation made against him only when a process has issued and he is put on trial." 8. Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for the conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under section 202 has been considered. In all these cases, it has been held that the object of the provisions of section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that be may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The Courts have also pointed out in these cases that what the Magistrate has to see is whether +,here is evidence in support of the allegations, of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality, of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant. 9. This brings us to the third ground. Section 203 of the Code of Criminal Procedure which empowers a, Magistrate to dismiss a complaint reads thus : " The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and, the result of the investigation or inquiry, if any, under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing." 10. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the power to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding. One of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation of the enquiry which he had ordered to be made under section 202, CrPC. In the case before us, an investigation by a police officer was not ordered by the learned SubDivisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. In the case before us, an investigation by a police officer was not ordered by the learned SubDivisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. All these were matters extraneous to the proceedings before him. What the Magistrate could not do, the High Court was incompetent to do, and, therefore, its order reversing that of the Sessions judge cannot be sustained. 12. Fortunately, no such question arises for consideration in this case but we may point out that since the object of an enquiry under section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. 22. In the present case, I have perused the proceedings of the case pending before the JMFC. After perusal of the said proceedings, it reveals that the Magistrate has only taken the cognizance in the matter and has not recorded the statement of the complainant, therefore, if after recording the statement of the complainant if Magistrate reached to the conclusion that case is cognizable, the Court will then issue summons to the petitioners or it may dismiss the complaint as provided under section 203 of CrPC. 23. At this stage, the petition filed by the petitioners under section 482 of CrPC appears to be pre-mature. The apex Court in the case of Chandra Deo Singh (supra), has held that before passing any order either under section 203 or 204 of CrPC the Magistrate is duty bound to consider the materials, which necessarily includes complaint, documents annexed with complaint, statements under section 200 and enquiry proceeding under section 202 CrPC. The apex Court in the case of Chandra Deo Singh (supra), has held that before passing any order either under section 203 or 204 of CrPC the Magistrate is duty bound to consider the materials, which necessarily includes complaint, documents annexed with complaint, statements under section 200 and enquiry proceeding under section 202 CrPC. In case the Magistrate proceeds and passes any order without considering the aforesaid material, the order shall be bad in the eyes of law. Thus, allowing quashment at this initial stage would amount to doing a thing which Magistrate is barred, and thus impermissible as held in the case of Chandra Deo Singh (supra). 24. The Magistrate exercising its power under section 202 has decided to enquire into the complaint before proceeding further and, thus, mandatory proceeding under section 202 CrPC is under way to determine whether the complaint is to be registered or not. 25. As submitted in the preceding paras, the stage for filing the present petition for quashment of complaint has not yet arrived. Even otherwise, looking at the complaint as its face value, prima facie case to proceed with issuance of notice is made out in the present case. The present petition is pre-mature, as the Magistrate has not even taken cognizance in the matter. Thus, no case for quashment, as prayed is made out. 26. With the aforesaid, the miscellaneous criminal case stands disposed of.