Atul Kaple and Shabbir Valli Vs State of Maharashtra and Jayesh Dawda

A.P. Bhangale, J.@mdashApplicants have filed this application u/s 482 of the Code of Criminal Procedure to call for the records in Regular Criminal Case No. 4199 of 2007 pending on the file of Judicial Magistrate, First Class, Court No. 3 Nagpur, and to quash the same.

2. Respondent No. 1/complainant Jayesh, a car buyer had filed complaint against the accused car dealer Star Motors etc. at Lakadganj Police station, Nagpur complaining offences under Sections 418, 420 read with Section 34 of the Indian Penal Code. The police initially treated it as N. C. case making entry No. 1343 on 20/09/2007. Being aggrieved by police inaction, the complainant had preferred the application dated 12/10/2007 before the Magistrate at Nagpur u/s 156(3) of the Code of Criminal Procedure for direction to the Lakadganj Police Station to register FIR and to investigate into the matter and to file report. Learned Magistrate by order dated 20/10/2007 directed the Police Station Officer, Police Station, Lakadganj, Nagpur to register FIR and investigate the matter and submit charge sheet/report, if any. On 04/11/2007 FIR No. M02/ 2007 under Sections 418, 420 read with Section 34 of the Penal Code was recorded against four accused. On 29/11/2007 charge sheet laid before the Magistrate was registered as Regular Criminal Case No 4199 of 2007. Dissatisfied with the chargesheet, complainant applied before the Magistrate on 04/12/2007 for direction to the Police Station Officer to take up further investigation u/s 173(8) of the Code and to file supplementary chargesheet. Learned JMFC Court No. 3 Nagpur by order dated 07/12/2007 allowed the application and directed Police station Officer of Lakadganj Police Station to further investigate into the matter and file supplementary charge sheet according to law. The order was challenged by Criminal Revision No. 818 of 2007 at the behest of applicants. By Judgment and order dated 07/03/2008 passed by Ad hoc Additional District and Sessions Judge9, Nagpur, the revision application was dismissed and learned Magistrate was directed to proceed in the matter further according to law. Hence, this application u/s 482 of the Code.

3. Heard submissions advanced by Mr S.V. Manohar, learned Counsel for the applicants and Ms R. Deshpande, learned Additional Public Prosecutor for Respondent No. 1State. None appears for Respondent No. 1.

4. Learned Counsel for the applicants has pressed into service the judgment of the Apex Court in Popular Muthiah Vs. State represented by Inspector of Police, . Relevant observations of the Apex Court in the said ruling are thus:

21 .The Code of Criminal Procedure provides is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following:

(i) The Court has the power to direct investigation in cognizable cases u/s 156(3) read with Section 190 of the Code of Criminal Procedure.

(ii) A Magistrate can postpone the issue of process and inquire into the case himself u/s 202(1) of the Code of Criminal Procedure.

(iii) When a charge sheet is failed, the court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The Court can direct further investigation into the matter

(iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure.

(v) Once the case is committed, the Sessions Judge may refer the matter to the High Court.

(vi) In the event, without taking any further evidence, it is found that while passing the order of commitment, the Magistrate has committed an error in not referring the case of an accused or left out an accused after evidences are adduced, the court may proceed against a person who was not an accused provided it appears from the evidences that he should be tried with the accused.

(vii) The revisional court during pendency of the trial may exercise its revisional jurisdiction u/s 397 in which case, it may direct further inquiry in terms of Section 398 of the Code of Criminal Procedure.

(viii) The revisional powers of the High Court and the Sessions Court are pointed out in the Code separately; from a perusal whereof it would appear that the High Court exercises larger power.

(ix) In the event of any conviction by a court of Sessions, an appeal there against would lie to the High Court. The appellate court exercises the power laid down u/s 386 of the Code of Criminal Procedure in which event it may also take further direct evidences in terms of Section 391 thereof.

(x) The High Court has inherent power u/s 482 of the Code of Criminal Procedure to correct errors of the courts below and pass such orders as may be necessary to do justice to the parties and/ or to prevent the abuse of process of court.

22 .The Code of Criminal Procedure, thus, provides for a corrective mechanism at each stage, viz., (i) investigation; (ii) trial; (iii) appeal and (iv) revision.

23 .The Code of Criminal Procedure, 1973 in contrast to the old Code provides for cognizance of an offence and committal of a case as contradistinguished from cognizance of an offender or committal of an accused to the court of Sessions.

In para 56 it is laid down thus:

So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on records but was also required to consider as to whether any purpose would be served thereby.

5. Learned Counsel for the applicants then relied upon M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, where in pararaphs 17 and 18 it is observed thus:

17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.

18 .In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.

7. Reference is then made to ruling in State of Maharashtra v. Prataprao@ Mahesh Baban Bhosale reported in 2011 (1) LJ SOFT (URC) 93 delivered by brother Kanade J. to submit that the police officer has right to carry on further investigation by obtaining formal permission from the Magistrate concerned in view of section 173(8) of the Code. Magistrate on his own is not empowered to order further investigation. Learned Counsel also relied upon ruling in Shri R.N. Raje Vs. State of Maharashtra (At the Instance of the Anti-Corruption Bureau, Solapur), to submit that the Magistrate can not compel the Police to file a chargesheet when they have submitted a final report, and a final report says that there is no case against the accused for sending him for trial, the Magistrate can still take cognizance u/s 190(1)(c) of the Code, obviously intending to secure that offenders may not go unpunished and it is obvious that he is not powerless to do so. Undoubtedly, the investigation is the arena of Police and the Magistrate is not empowered to impinge upon that arena. However, if he is not satisfied with the final report , he may give direction to the Police for further investigation and may take cognizance, if he has got even a suspicion that offence has been committed although Magistrate can not force the police to change their opinion and can not force them to file chargesheet. Learned Counsel for the applicants submitted that dispute between the car dealer and complainant is of a civil nature and therefore criminal proceeding ought to be quashed and set aside. Learned Counsel wanted to refer to copies of documents annexed with the application. However, at this stage I feel that this Court can not embark upon detailed inquiry as to whether the allegations are likely to be proved or not. That would amount to impinging upon jurisdiction of the trial Magistrate.

8. Learned Additional Public Prosecutor for the Respondent No. 1State, on the other hand, placed reliance upon the ruling in Srinivas Gundluri and Others Vs. SEPCO Electric Power Construction Corporation and Others, . She invited my attention to para 24 wherein it is observed thus:

Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report u/s 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the Appellants is premature and the High Court rightly rejected their request.

9. Learned APP next contended that the present petition is also premature and ought not to be entertained, because till the accused is summoned, there is no proceeding qua the accused. According to her, there is no right in the accused at precognizance stage to claim hearing and any complaint disclosing cognizable offence must be investigated to bring culprits to the book. Learned APP argued that accused can not be allowed to thwart investigation at its preliminary stage.

10. It is true that power of the Court to interfere at the investigation stage is very limited to prevent abuse of the process of the Court or secure ends of justice and this power is to be exercised very sparingly and with abundant caution. Investigation is a continuing process which culminates into a final report u/s 169/173 of the Code by the police. In a given case Magistrate may take cognizance of the offence and proceed further according to law although the Police may have sent report of no case u/s 169 of the Code. Magistrate is not under obligation to accept such report if he does not agree with it. Notwithstanding the opinion of the Police, the Magistrate can take cognizance of the offence u/s 190(1)(c) of the Code in the interest of justice to punish the offender.

11. Learned Magistrate in the present case had exercised judicial discretion vested in him to order investigation in view of Section 156(3) of the Code and thereafter to direct further investigation u/s 173(8) of the Code in respect of the complaint made. It was neither arbitrary nor perverse. Section 173(8) of the code is an enabling provision which allows police to complete the investigation. The Magistrate who receives the final report from the Police undertakes judicial scrutiny as he may accept it to take cognizance and issue process or may disagree with it and drop the proceedings or may direct further investigation u/s 173(8) of the Code. The Magistrate is expected to apply his mind to the facts emerging from the investigation done by the police before taking cognizance u/s 190 of the Code. The accused would come in picture once the process is issued and not before that. The learned Ad hoc Additional District Judge, Nagpur by reasoned judgment and order has rightly decided to confirm the impugned order and dismissed the Criminal Revision. This Court can not use power u/s 482 of the Code to stifle legitimate prosecution. The power is extreme and required to be exercised sparingly in rarest of the rare cases with abundant caution as held by the Supreme Court in Iridium India Telecom Ltd. Vs. Motorola Incorporated and Others, . Thus after considering the contentions on behalf of the applicants as well as the RespondentState and upon perusal of the impugned judgment and order, this Court is of the view that no case is made out to interfere with the judicial discretion of the Courts below and it is a fit case where the prosecution must proceed further in accordance with law.

12. For the reasons stated and in the interest of justice, this Court is not inclined to interfere with the order impugned. Hence, the application is dismissed.

13. Respondent No. 2 has filed application (Criminal Application No. 2107 of 2008) for taking appropriate action against the applicants for having filed fraudulent, manipulated and forged documents. Neither Respondent No. 2 nor his counsel was present at the time of hearing of main application. Consequently, Criminal Application No. 2107 of 2008 is dismissed for want of prosecution.