ORDER
1. The petitioner in the present case is the accused in criminal case, pending before Metropolitan Magistrate. Briefly stating, the facts of the case are as under :-
That the accused and the complainant are related to each other as son and father respectively. The complainant, Shri [ENTITY], acting for an on behalf of Jaiswal Packaging Private Limited, had filed a complaint against Mr. [ENTITY] under [SECTION], [SECTION] and [SECTION] [ACT] read with [SECTION] of [ACT] in the Court of Shri [ENTITY], Metropolitan Magistrate (ase he then was). It is alleged in the complaint that the accused had removed important parts of the machinery from the factory such as Feeder of Dominical (0715) Offset Printing, Gauge of Polar Automatic Paper Cutting Machine, Belt and other parts of heidelberg machines etc. apart from books of account misappropriated funds. The complaint after being marked by the ACMM to Shri [ENTITY], Metropolitan Magistrate, who in turn referred the complaint to SHO, Okhla Industrial Area. While the matter was being investigated by the SHO., Shri [ENTITY] filed a Company Petition under [SECTION] and [SECTION] of the [ACT], being [CASE NUMBER]. In that matter, Shri [ENTITY] got a Commissioner appointed and got certain proceedings recorded on commission, such as possession of account books of the company and certain important parts of the machinery without which the machines cannot operate. The SHO, in the course of his investigations, took note of what was produced before the Commissioner, appointed by the High Court in the said Company Petition and also recorded statements of certain individuals including watchman. On the basis of this material, he returned a finding that no offence is made out. As such, no action was taken by the Metropolitan Magistrate until the complainant moved again by means of an application, which was described as Protest Application. The Metropolitan Magistrate heard the parties in response to the said Protest Application and looked into the material brought on record by the SHO, appraised the material independently and came to the conclusion that prima facie a case was made out under [SECTION] and issued the summons.
2. The accused, feeling aggrieved from the said order of summoning, moved the present petition, challenging the order of summoning on various grounds such as :-
(1) On the plea that books of accounts are not property as these have no value and they are movable or retention by the accused, who was at one time Director in charge of the Company, did not commit any offence;
(2) The dispute complained of is of civil nature and parallel proceedings relating to the same property are already pending before the Company Judge of this High Court. Therefore, also no summons should have been issued :
(3) The Magistrate has committed serious error of jurisdiction in issuing process without complying with the mandatory requirement of [SECTION] of [ACT] in as much as no statements of the witnesses were recorded by the Magistrate and the Magistrate proceeded merely on the material placed on record by the SHO;
(4) If any action had to be taken, then [SECTION] of the [ACT] read with [SECTION] was the specific provision, which should have been invoked and not the general criminal law provision; and (5) It was highly improper on the part of the Magistrate to rely upon the record of this Court even though it was forming part of the Magistrate's file along with SHO's report and that order summoning the accused is an abuse of the process of Court.
3. For these reasons, it was submitted that the order summoning the accused as the complaint be quashed.
4. At the hearing before me, Mr. [ENTITY] conceded that the accused did remove the books of account and machinery parts, but further stated that the parts of the machinery and the books brought back by the accused are the same, which were removed by Mr. [ENTITY] from the factory of 27th and 29th April, 1990. He stated that he had done so to prevent sale of machinery and to account himself with acquaints and there was no means read to commit any crime. At present, I need not pronounce on the first and second contention of Mr. [ENTITY].
5. Coming to the third contention along with the third plea, Mr. [ENTITY] has laid a lot of stress or the non-observance of mandatory condition of [SECTION] and has relied upon the following authorities :-
(1) [PRECEDENT], reported as (2) [PRECEDENT] [PRECEDENT] Braja Lall Dutta v. Kenaram Pal, reported as AIR 1919 Patna [SECTION] (5) [PRECEDENT], reported as [PRECEDENT] Cri LJ 647) (6) [PRECEDENT], reported as
6. Mr. [ENTITY] also relied upon [PRECEDENT], reported as . Mr. [ENTITY] further argued that in any event expediency demands that the proceedings before Magistrate should be stayed to await the outcome of the Company Petition since both the matters relate to the same Company and its properties. It will be appropriate to notice that the complaint was filed on 28th April, 1990 and the Company Petition was filed towards the end of May, 1990. Each side has accused the other of initiating action to prevent the other side from invoking law appropriately. The complainant's case was that son came to know that complaint had been filed and only to dilute its effect, he initiated the proceedings under [SECTION] and [SECTION], which are alleged to be a counter blast only. While Mr. [ENTITY] states that when the Company Petition was filed, his client did not even know of the complaint having been filed and that it was only after the Protest Petition was filed on 5th July, 1990 that the accused became aware of filing of the complaint.
7. Mr. [ENTITY] has referred to [SECTION] of [ACT] and argued that cognizance of the complaint was taken by the Chief Metropolitan Magistrate when he marked the complaint to Mr. [ENTITY], Metropolitan Magistrate. I find from the record that no such application of mind on the merits of the complaint had taken place and it was a mere administrative act of marking the complaint to another Magistrate to deal with the complaint.
8. The above arguments of Mr. [ENTITY] have been met by Mrs. [ENTITY], who has contended that the Magistrate instead of himself conducting the preliminary inquiry and recording statements, had the full authority to refer the matter for investigation to police authorities under [SECTION] of [ACT], which he did, and when such procedure is adopted, it is not necessary to repeal the exercise of recording evidence and the Magistrate can without following the procedure laid down in [SECTION] appreciate or appraise the material brought on record by the police and can draw his own inference and take appropriate action, which in the present case was done by the Magistrate. According to her, this was not a case, which fell under [SECTION] and [SECTION] of the [ACT]. In support of her arguments, she has relied upon the following authorities :-
(1) [PRECEDENT] [PRECEDENT] M/s. [PRECEDENT], reported as
9. While arguing on the question as to when the cognizance should be deemed to have been taken by the Magistrate, she contended and I think rightly, that it is only at the stage when the Magistrate after conscious application of mind issues the process summoning the accused. That it can be said that the Magistrate has taken cognizance of the offence and not when Chief Metropolitan Magistrate merely marks the case to a Metropolitan Magistrate. In support of her contention, she referred to the decision in the case of [PRECEDENT], reported as . She also cited the cases of [PRECEDENT], reported as and [PRECEDENT], reported as to support her arguments. It has also been stated by Mrs. [ENTITY] that the accused in the circumstances of the case should not be shown any indulgence by this Court and he should face the trial.
10. After giving careful thought to the arguments of the parties and the case law cited at the Bar, I am of the considered opinion that no irregularity of procedure is committed by the Metropolitan Magistrate in not recording statements of the witnesses under [SECTION] of [ACT] when that exercise had already been done by the police authorities under [SECTION] of [ACT] on being entrusted with the job by the Metropolitan Magistrate. The Metropolitan Magistrate was entitled to either record the statements himself on receipt of the complaint, as provided under [SECTION] of [ACT] or send it to police for investigation as provided in [SECTION] of [ACT] which did in the present case.
11. On receipt of the report, the Metropolitan Magistrate is fully empowered to either accept the report or on his own to appraise the material brought on record by the police authorities and on the basis thereof reach his own conclusion. In case, on appraising the material on record, the Metropolitan Magistrate comes to the conclusion that prima facie an offence is made out, he would not be bound by the opinion of police authorities and would be free to summon the accused on his own appraisal of the material and opinion that the Metropolitan Magistrate forms on the basis thereof. In case the police officer had taken on record the report of the Commissioner and the statements recorded by her, the adverting to such material got placed on record by the accused himself would not be fatal to the complaint or order summoning the accused. As such. I find no force in contentions Nos. 3 and 5.
12. Coming to contention No. 4, I am prima facie of the view that the penalty provided under [SECTION] read with [SECTION] does not in any manner prejudice or affect or dilute the right of the complainant to prosecute the accused of any offence which an accused may be alleged to have committed and which is punishable under [ACT]. But at this stage, I do not consider that it is necessary to decide this question which can be gone into in detail at the time of trial.
In the peculiar facts of the present case, I find that the allegations and counter-allegations in the Company Petition also relate to the conduct of the accused and covers the questions of fact, some of which are common in the complaint and the Company Petition and to that extent, it could be said that if the complaint proceeds further, it would amount to parallel proceedings relating to the same facts and possibility of conflict of decision cannot be overruled. For that reason, I consider it to be in the interest of justice to stay the proceedings before the Metropolitan Magistrate during the pendency of this Company Petition. Ordered accordingly.
[CASE NUMBER] is disposed of in the above terms with no order as to costs.
13. Order accordingly.