V.S. Narayanan Vs Sri B.G. Sridhar and Another

@JUDGMENTTAG-ORDER

M.P. Chinnappa, J.@mdashIn these two cases, petitioners raised an identical question for determination. Hence they are taken up together and disposed of by this common order. Retain a copy in each file.

2. In Cr.P. 1450/94 the respondent filed a complaint u/s 20 Cr.P.C. against the petitioner in which it is alleged that the petitioner fraudulently and dishonestly inserted ''O'' next to the figure ''90,000'' to tally with the words Rs. 9 lakhs, thus he committed offences punishable under Sections 464, 467, 468, 469, 471 and 474 read with Section 420 IPC. The leaned Magistrate directed the police to investigate and report u/s 156(3) Cr.P.C. Similarly, in Cr.P.2280/94 the respondent filed a complaint against the petitioners on the allegation that the 1st petitioner in collusion with petitioners 2 & 3 forged and, fabricated a document styled as an agreement of sale in his favour by the complainant and his brother wherein the 1st petitioner has forged the signatures of the complainant and his brother. Petitioners 2 and 3 have attested the document and the 1st petitioner also filed O.S. 154/94 in the Court of Prl. Munsiff, Belgaum for permanent injunction on the basis of the said agreement and in support of that case, the petitioners 2 & 3 filed affidavits. On these grounds, the complainant has stated that they have committed offences punishable under Sections 463, 465, 468, 471, 474 r/w Section 34 IPC. The leaned Magistrate referred the case to the police for investigation and report u/s 156(3) Cr.P.C. These orders are questioned by the petitioners in these petitions.

3. Heard the learned counsel for the petitioners and also the learned High Court Government Pleader for the respondents.

4. The learned counsel for the petitioners submitted that the petitioners have already filed suits for necessary reliefs on the basis of the document said to have been fabricated or forged by the petitioners in the respective Courts. Therefore, it is for the Civil Court to take action if at all against these petitioners after the evidence is let in u/s 195 Cr.P.C. following the procedure as contemplated u/s 340 Cr.P.C. According to the petitioners the Court ought not to have entertained the complaints filed by complainants, the offences of which are covered u/s 195 Cr.P.C. Therefore, they submitted that the complaints are liable to be dismissed summarily.

5. Per contra, the learned High Court Government Pleader submitted that the Magistrate has merely directed the police to investigate into the offences in both the cases and to report. He has not taken cognizance of the offence. As such, the petitioners have no locus standi to approach this Court u/s 482 Cr.P.C. Hence he submitted that the petitions are liable to be rejected on that ground itself.

6. The learned advocates appearing for the petitioners in support of their arguments placed reliance on a decision in Padohi Ram Vs. State of Uttar Pradesh and Another, where it is held:

"Execution of sale deed - Proceedings for mutation pending before competent Court - Filing of complaint by individual u/s 156(3) alleging that deed was forged one - Barred by Section 195."

Similarly, in RAMSEWAK AND ORS v. NARENDRA KUMAR AND ORS. 1996 Cri.L.J. 708 the Madhya Pradesh High Court has held that offences u/s 120B, 467, 468 and 471 IPC. cognizance could not be taken on private complaint as provisions of Section 195 would be attracted. In Tej Singh and Others Vs. The State, the Jammu & Kashmir High Court has held:

"Offence u/s 188, Cr.P.C. - No complaint by public servant concerned - Police cannot challan the accused for the offence - Notification making the offence a cognizable one does not override the bar imposed by Section 195(1)(a) of the Cr.P.C."

It is further held that in such cases therefore, the proceedings initiated at the police report and the process issued against the accused without a proper complaint made in writing of the public servant concerned, is illegal and without jurisdiction. In all these 3 cases referred to above, the orders were questioned before the High Court after the police investigated and submitted the report and that the Magistrate took cognizance and directed to issue process to the accused persons.

7. In this case, as stated earlier, the learned Magistrate has not applied his mind and cognizance was not taken. On the other hand, he merely referred the matter to the police for investigation and report. That order is questioned by the accused.

8. It is well settled law that the accused will have no locus standi to question the order passed by the Court which is prelude to taking cognizance of the offence. In other words, the action taken by the Court is only between the Court and the complainant and the accused does not come into picture. The accused gets right to approach the Court to participate in the proceedings or to question the order only after the concerned Court takes cognizance and directs to issue process to the accused persons. Till such time though the accused is present in Court, cannot participate in the proceedings but can only observe the proceedings. Therefore, as rightly pointed out by the learned High Court Government Pleader, the accused does not get right to approach this Court u/s 482 Cr.P.C. as no order taking cognizance and directing to issue process was passed by the Court.

9. To substantiate this argument, it is necessary to refer to the decisions reported in Kurukshetra University and Another Vs. State of Haryana and Another, ; Jehan Singh Vs. Delhi Administration, and Mandanna Vs. State of Karnataka, . In all these cases it is held inherent power does not confer an arbitrary jurisdiction on the High Court to act according to whims and caprice. To be exercised sparingly with circumspection and in the rarest of rare cases. It cannot quash an. FIR where the police have not even commenced the investigation. The High Court cannot exercise its inherent jurisdiction to interfere with the statutory power of the police to investigate in the alleged offence and quash the proceedings which are still at the stage of investigation. It is also held by Their Lordships of the Supreme Court in a decision reported in Addl. Commissioner of Income Tax and Another Vs. A.L.N. Rao Charitable Trust, wherein it is held that Court cannot stay the investigation where it is not know as to whether the police will file a charge sheet against the petitioners. Even after a charge sheet is filed, the accused persons are at liberty to make an application before the same Court bringing out all these grounds and to request the Court to discharge the accused. It is not known as to whether charges would be framed for the offences coming u/s 195 Cr.P.C. or whether they have committed any other offence. If the matter is stalled at the very beginning without an opportunity being given, it will cause great hardship to them. Even if the Magistrate is of the opinion that the matter has to be stayed, he can exercise his discretion in a proper way and pass necessary orders. But at the very inception of the complaint itself, if the Court were to interferes u/s 482 Cr.P.C. on any grounds urged by the accused persons, naturally the complainant would be without any remedy. It is also not known as to whether the Civil Court would take action in the proper perspective if the file is closed. However, the complainant is also at liberty to bring it to the notice of the Civil Court if such a finding is given by the learned Court and it is for the Civil Court to take necessary action as contemplated u/s 195 following the procedure u/s 340 Cr.P.C. Therefore, at this initial stage itself, this Court cannot interfere with the order passed by the learned Magistrate directing the police to investigate into the matter. If the complaint is unsustainable, the petitioners are at liberty, at the first hearing date itself, after they are summoned by the Magistrate in the complaint to urge all the grounds before the learned Magistrate. For the foregoing reasons, I am of the considered view that these petitions are not maintainable as premature and they are liable to be rejected.

10. Accordingly, these petitions are dismissed reserving liberty to the petitioners as indicated above.