HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 4 of 2008 Reserved on: 7.5.2008. Decided on: 8.5.2008 Atul Sood ………Petitioner. Versus State of H. P and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.R.L. Sood, Senior Advocate, with Mr.Arjun Lall, Advocate. For respondent No.1: Mr.J.S. Guleria, Law Officer. For respondents No.2 and 3: Mr.Romesh Verma, Advocate. V.K. Ahuja, J: This is a petition filed by the petitioner under Section 482 Cr.P.C., in the alternative under Article 227 of the Constitution of India, for quashing of FIR No.39 of 2007, dated 5.3.2007, registered at Police Station, Chirgaon, under Section 406 IPC as well as for quashing of criminal proceedings pending in the court of Judicial Magistrate (II), Rohru. Brief facts of the case are that a criminal complaint was filed before the learned SDJM, Rohru by respondent No.1 as against the petitioner under Section 406 IPC, which complaint is dated 26.2.2007 on which date, the Judicial Magistrate ordered his ‘office to check and report on 1.3.2007’. There is a report made by the office of the Judicial Magistrate, Rohru that it is a complaint under _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Section 406 IPC, but neither there is an endorsement on the complaint as to the orders passed by the court nor there is any covering letter alongwith the complaint sent to the police. However, in the end of the complaint, there is an endorsement made by the SHO, Police Station, Chirgaon that FIR No.39/2007, dated 5.3.2007, under Section 406 IPC has been registered. It is not clear as to when the complaint was received by the police, what orders were passed by the learned Magistrate and on what basis this FIR was registered. This finds clarification from the FIR registered by the police and record attached with the challan, which shows that on this complaint, the learned Magistrate recorded the statements of the complainant on 1.3.2007 alongwith that of one witness Shiv Nath and observed that a case under Section 406 IPC is made out against the accused. It was further observed that according to Section 202 Cr.P.C., after recording of the evidence, the case has to be sent for investigation and the same is sent for investigation to the police and the police is directed to conduct the investigation and submit the report before this Court on or before 30.3.2007. On this order which finds a reference in the FIR, the FIR was registered and the police conducted the investigation in the case. The final report was also filed under Section 173 Cr.P.C. on 5.7.2007 and subsequently, the cognizance was also taken by the Court. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that the dispute in question was of civil nature and summoning the accused can be said to be gross abuse of the process of the court. It was also pleaded that entrustment of potato bags was made at Delhi only and, therefore, the court at - 3 - Rohru had no jurisdiction to summon the petitioner under Section 406 IPC. The third point raised by the learned counsel for the petitioner was that the delay in question has not been explained and in a hot haste, the case was investigated by the police. The challan was submitted by the police in four days. The petitioner has to come from Delhi to appear at Rohru and it can be said to be the misuse of the process of the court and accordingly the proceedings are liable to be quashed. On the other hand, the learned counsel for the respondent submitted that it is for the court to consider as to where the occurrence had taken place. The talks were held at Rohru and the accused had visited the area of the complainant and requested the growers to send their crop at Delhi and since the talks were held at Rohru earlier, therefore, the court at Rohru had jurisdiction and as such the proceedings are not liable to be quashed. It was submitted that all the pleas taken can be considered by the court when the petitioner puts in appearance before the said court. The learned counsel for the respondent, in opposing this petition, had relied upon an unreported decision of this Court passed in Cr.M.M.O. No.7 of 2008, dated 17.3.2008, titled Jayeshkumar & others v. The State of H.P. & another. The petition had been filed for quashing of the complaint pending before the trial Court under the provisions of Drugs and Cosmetics Act. Various pleas were raised by the petitioner and it was observed by this Court that all these points can be raised at the stage of notice of accusation under Section 251 Cr.P.C. It was also observed that the plea of non-compliance of the provisions in regard to Section 34 of the Act was also raised as well as the question as to who - 4 - was the Incharge of the business, which questions can be considered by the trial Court as and when raised. The above decision, to my mind, does not apply to the facts of the present case since various pleas were raised in that case and the facts concerning those pleas were yet to be considered by the trial Court. This court had also referred to the decision of the Apex Court in K.M. Mathew v. State of Kerala, 1992 Cri. LJ 377, in which it was held that the power to drop the proceedings against the accused is vested in the Court, even after he is summoned. It was further observed in Para-6 that it therefore follows that the accused would be entitled to hearing at the notice stage even in a summons trial case. The accused cannot be forced to go through the mill of trial if he demonstrates on the basis of admitted facts that no case against him is made out. In such a situation, the Court would be well within its jurisdiction to revoke the cognizance. On the other hand to substantiate his pleas the learned counsel for the petitioner had relied upon the following decisions. The decision in Vir Parkash vs. Anil Kumar Agarwal and another, (2007) 7 Supreme Court Cases 373, shows that the petition was filed under Section 482 Cr.P.C. for quashing of the proceedings. It was observed by the apex court that where allegations contained in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose any offence, the complaint can be quashed. In that case, the complaint was filed under Section 138 of Negotiable Instruments Act. The decision in S.W.Palanitkar and others v. State of Bihar and another, (2002) 1 Supreme Court Cases 241, was also relied upon. In that - 5 - case, it was observed that neither the complaint nor the statement of witnesses showing that any property was entrusted to any of the accused or that the accused had domain over any property of the complainant, which the accused converted to their own use. In such circumstances, the ingredients of Section 405 were not even prima facie satisfied. It was held that the Magistrate was in serious error in issuing the process. The decision in Ram Biraji Devi and another v. Umesh Kumar Singh and another, (2006) 6 Supreme Court Cases 669, was relied upon wherein it was observed that as to when the jurisdiction of the High Court could be exercised under Section 482 Cr.P.C. It was held that it should be exercised in extreme exceptions. The decision in Jaswantrai Manilal Akhaney v. The State of Bombay, AIR 1956 Vol.43, 575, shows that it was observed in para 12 as under: “The same set of facts may give rise both to a civil liability and a criminal prosecution. But if there is no mens rea, or if the other essential ingredients of an offence are lacking, the same facts may not sustain a criminal prosecution, though a civil action may lie.” Coming to the facts of the present case, to bring the cause of action at Rohru, the complainant simply alleged that the accused had come to Rohru and had requested the growers to send their cash crops for sale in the market to Delhi. There were no allegations about month or date except that he came during season in the year, 2005. In the next para, it was alleged that the bags of potatoes, as detailed, were sent for sale in market to Delhi and according to the allegations and statement made by the complainant, these were sent in a - 6 - truck and were delivered to the petitioner at Delhi. Thus, there was no entrustment of the potato bags to the petitioner within the jurisdiction of the court at Rohru but this was so entrusted to the petitioner, if the allegations are believed to be true, at Delhi. Moreover, the petitioner had taken the plea that there has been an inordinate delay in lodging the FIR since the potato bags were sent on 1.8.2005. The notice was issued to the petitioner on 22.11.2006 and the complaint was filed on 26.2.2007 after a lapse of sufficient time. No reasons for the delay have been explained in the complaint lodged with the police. Apart from the above, the petitioner had alleged in his petition under Section 482 Cr.P.C. that according to the procedure prevalent, on production of the copy of the bilty, the payment was made to the person who produced the yellow copy of the bilty and production was detailed in the petition and the allegations were made that against that on production of the copy the payment was made and the petitioner also attached copy of the cash book entries which were yet to be proved, but these were filed alongwith the petition. These facts were within the knowledge of respondent No.1 and he should have admitted or denied these allegations but he never chose to file any reply to the petition but adopted the reply filed by the Superintendent of Police on behalf of the State and the Superintendent of Police cannot be said to have any knowledge of these facts. There are other peculiar facts of the case to which I intend to make a reference to show that there has been misuse of the power of the court in issuing the process and the complainant had tried to misuse the process of the court by filing the present complaint at Rohru. - 7 - I have already mentioned that no cause of action had arisen at Rohru since the property had not been entrusted to the petitioner at Rohru but at Delhi. This dispute, prima facie, can be said to be of civil nature and even if the offence under Section 406 IPC was made out, it was made out within the jurisdiction of the courts at Delhi. The learned Magistrate took cognizance of the complainant, recorded the statements of the witnesses and under Section 202 Cr.P.C., he sent the complaint to the police for investigation. Section 202 Cr.P.C. prescribes that the complaint can be sent to the police for investigation even after recording of the statement of the witnesses but that power is to be exercised for the purpose of deciding whether or not there is sufficient ground for proceeding and the complaint may be entrusted to another Magistrate or the police if the accused is residing at a place beyond the area in which he exercises his jurisdiction. Therefore, the Magistrate has not to issue the process or form an opinion but has to wait for the investigation made by the police and then he has to decide as to whether there were sufficient grounds for proceeding or not. However, while forwarding the present case to the police under Section 202 Cr.P.C., the Magistrate observed that the case under Section 406 IPC is made out against the accused/petitioner. If in case he had already formed an opinion that offence under Section 406 IPC was made out, there was no occasion for the Magistrate to have sent the case to the police under Section 202 Cr.P.C. In the alternative, he should have waited for the result of the investigation and should have applied his mind thereafter in case the challan was filed, which was subsequently filed and the petitioner was summoned. Moreover, there was no occasion for the learned Magistrate to give a time bound direction to the police - 8 - to complete the investigation by a specific date and submit the report once there has been inordinate delay in lodging the complaint with the police by the complainant himself and the facts did not disclose that there was any urgency for the police to take up the investigation and submit its report in the same urgency. A perusal of the of the record of the case shows that the learned Magistrate had sent the original order sheets also to the police alongwith the complaint and statements recorded though the copies of the same alongwith the order should have been sent and not the record maintained by the court, since the record of the court was required to be maintained by the court and copies alongwith complaint should have been sent, since it was the part of the record of the court. It has also come on the record that a civil suit has already been field by the complainant for recovery of the amount, which was submitted by the learned counsel for the petitioner during the course of the arguments and not disputed by the respondents. Thus, it is clear that the nature of the offence was, prima facie, of civil nature and even if offence under Section 406 IPC was made out, no occurrence has taken place within the jurisdiction of the court at Rohru and issuance of the summons to the petitioner can be said to be misuse of the process. The apex court has held that the powers under Section 482 Cr.P.C. should be used sparingly and it is a fit case where such powers can be used since the facts are not disputed that the articles were sent to Delhi and the complaint clearly shows all the facts which are not in dispute. Therefore, allowing the proceedings to continue will be a misuse of process of court and accordingly, the petition filed by the petitioner is allowed. - 9 - The prayer made for quashing of the FIR and subsequent challan filed in the court and all other proceedings pending in pursuance of the registration of this FIR are quashed. The petition stands disposed of accordingly. In view of the final disposal of the main petition, all the pending miscellaneous applications, if any, shall also stand disposed of. May 8, 2008` (V.K. Ahuja), (TILAK) Judge.