#fflo7 HIGH COURT OF SIKKIM GANGTOK Criminal Misc. Case No. 2 of 2006 Santosh Kumar Himatsingka, Director, Lexicon Auto Ltd., C/O Himatsingka Auto Enterprise, Parmeshwari Building, Chatribari Road, Gunhati. Harish Himatsingka, Director, Lexicon Auto Ltd., Residing at 408, Princep Street, Kolkafa. 3. Mr. Manoj Dutta, Sales Executive of Lexicon Auto Ltd,, Matigara, Siliguri. Versus Snowlion Automobiles Ltd., 5th Mile Tadong, East Sikkim through Mahabir Pd. Agarwal, Director 2. State of sikkim Petitioners. Respondents. Counsel fort:he petitioners : Mr. R. K. Agarwal assisted by Mrs. Laxmi chakraborty. Counsel for the Respondent NO.1 Counsel for the Respondent NO.2 : Mr. N. K. P. Sarraf assisted by Ms. Ranjita Kumari, Ms.Saroj Singh and Ms. Sabita Chettri. : Mr. J. 8. Pradhan, Public Prosecutor. Present : The Hon'ble Mr. Justice A. P. Subba, Judge. Date of Order : 26th March, 2007 i=\±.,,,.,., ORDER This Criminal Misc. Case filed under Section 482 of the Code of Criminal Procedure, 1973 is directed against the order dated 21.04.2006 passed by the learned Chief Judicial Magistrate (East & North) at Gangtok in PC Case No.1 of 2006 taking cognizance of offences u/Ss. 447/420/506/352/34 of the Indian Penal Code and directing issue of process against the present Petitioners. 2, AS per the facts set out in the Crl. Misc. Case, the Snowlion Automobiles Ltd. (Respondent No.1) through its Director, Mahabir Agarwal, filed a petition of complaint in the Court of the learned Chief Judicial Magistrate (East & North) at Gangtok (for short CJM) on 24.5.2005 against the Petitioners alleging, inter alia, that the Petitioner No.2 as Agent of Lexicon Auto Limited had entered into an agreement with the Snowlion Automobiles Ltd. (Respondent No.1), (a company registered under Sikkim Companies Act) through its Director, Mahabir Prasad Agarwal. Under this agreement, the Respondent No.1 which owned a Tata vehicles repairing center with parking space at 5th Mile, Tadong, agreed to provide space at their repairing center for parking the new Tata vehicles of the Petitioners. The safety and security of the vehicles so parked in the said premises was to be the responsibility of the Respondent No.1. In addition, the Respondent No.1 had also undertaken the job of conducting regular check-up and cleaning of t:he vehicles parked in the premises. For the services so rendered and the parking facility so provided kL--- under the agreement, a consideration amount of Rs.50, 000.00 per month was fixed. Pursuant to the agreement, the Petitioners started parking their new Tata vehicles in the space provided by the Respondent No.1 from the month of August, 2003 and the Respondent No. 1 started rendering necessary services in terms of the agreement for which he had to provide four security staff in addition to service staff for ensuring security besides cleaning of the vehicles regularly. However, on 24.5.2004, at about 3.00 p.in. one Manoj Dutta, (Petitioner No.3) Sales Executive of Lexicon Auto Ltd. accompanied by two other persons whom he introduced as officials of the Motor Vehicles Department, came to the premises and told the staff of the Respondent No.1 that they had come there to remove the new Tata vehicles parked in the Respondent No.1's premises. Since Mr. Mahabir Agarwal, the Director of the Company was out of station on the relevant day, Mr. Biswanat:h Das, Manager of the Snowlion Automobiles Ltd., contacted him over phone and when he informed him of the purpose and visit of the Petitioners to the premises, the said Mahabir Agarwal instructed the Manager not to permit the Petitioners to take away the vehicles unless the dues amounting to Rs.4 lakhs being the rent payable up to the month of May, 2004 had been cleared. However, in the meantime, several anti social elements were called to the premises by the said Manoj Dutta and with their help they forcibly removed all the vehicles from the premises under threats that any one who dared to resist them will meet with dire consequences and in the process some of these anti social elements also manhandled, pushed and slapped Mr. Biswanath Das. RE= ). It was also stated in the complaint, that an FIR was lodged at • Sadar Police Station regarding the incident on 9.6.2004 but no action was taken in the matter, and as such, the complaint was being filed. 3, When the above petition of complaint was filed by the Respondent No.1 on 24.05.2005, the Chief Judicial Magistrate (East and North) at Gangtok endorsed the same to O/C Sadar Police Station, Gangtok for enquiry and report. On 21.1.2006, S.I. Kalpana Dong, Sadar Police Station to whom the complaint was endorsed for investigation, submitted the report to the learned Chief Judicial Magistrate (East and North) at Gangtok. The report was placed before the learned Chief Judicial Magistrate (E&N) on 3.2.2006. Since the matter was adjourned on the request of the complainant on that day, no order either accepting or re].ecting the report was passed. On the adjourned date, i.e., on 21.4.2006, the learned Chief Judicial Magistrate examined the complainant (Respondent No.1) on oath and on such examination and after perusal of the documents along with the complaint found sufficient material to proceed further and accordingly took cognizance ,of the offence and ordered issue of summons against the Petitioners fixing 29.5.2006 for appearance of the P;s±i±!gDe[s. It is against this order taking cognizance of the offence and directing issue of process against the Petitioners in the manner stated above that the present Revision Petition has been directed. 4, Mr. R. K. Agarwal, learned Counsel assisted by Mrs. Laxmi Chakraborty, learned Counsel appearing on behalf of the Petitioners, Mr. N. K. P. Sarraf, learned Counsel assisted by Ms. Saroj Singh, learned Counsel appearing on behalf of Respondent No.1 and Mr. J. 8. Pradhan, RIi learned Public Prosecutor appearing on behalf of the State - Respondent No.2 were heard. 5, Mr. R. K. Agarwal, the learned Counsel for the Petitioners submitted that the learned Chief Judicial Magistrate failed to follow the relevant procedure laid down in the Cr.P.C. for taking cognizance of an offence, and such irregularity committed by the learned Court vitiated the proceedings. Additionally it was also submitted by him that the dispute between the parties was civil in nature in so far as there was no mens rea on the part of the Petitioners in the commission of the alleged wrong, that the evidence relied on by the learned CJM for coming to the conclusion that there was prima facie case was purely hearsay in nature, that there was undue delay in lodging the FIR and that there was delay also in filing the petition of complaint. Mr. N. K. P. Sarraf, learned Counsel for the Respondent No.1 submitted that no irregularity was committed by the learned CJM in so far as it was permissible to examine the complainant and proceed further on receipt of the police report submitted by the police. Supporting the submission made by Mr. N. K. P. Sarraf, Mr, J. 8. Pradhan, learned Public Prosecutor appearing on behalf of the State - Respondent No.2 submitted that even if any irregularity was committed in sending the complaint to the police without examining the complainant at the first instance, the irregularity must be taken to have been rectified on examination of the complainant after the receipt of the police report. 6, As it can be noticed from the submissions noted above, the first and the main ground urged by the learned Counsel for the Petitioners relates to the procedural irregularity allegedly committed by the learned .i-- Chief Judicial Magistrate while taking cognizance of the offence u/S. 200 r/w Sec. 190 Cr.P.C. and other related provisions. In order to appreciate this contention raised by the learned Counsel, it would be necessary to notice the different steps taken by the learned Magistrate on and after receiving the petition of complaint and till the passing of the impugned order directing issue of process. 7. As already narrated above, the petition of complaint was filed by the complainant before the learned Chief Judicial Magistrate (E&N) at Gangtok on 24.05.2005. The endorsement made by the learned CJM on the body of the petition on that date shows that the petition of complaint was referred to O.C. Sadar P.S. for enquiry and report. The endorsement reads as follows :- "To 0/C Sadar P.S. for enquiry and report". The report in respect of the investigation carried out by the police pursuant to the above order was filed before the Ld. CJM on 3.2.2006. The order passed by t:he learned Court on the file on that date, reads as follows: - `1. 312106 Case file pLit Llp before me today. I-.-- Comp[ainant Martabir Prasad Agarwal present in Person. Also seen the report submitted by S.I. Kalpana Dong of Sadar P.S, Complainant verbally submitted that his Counsel Shrj A. K. Upadliaya is busy in connection with other Cases and prays time till 21.04.06. Considered, time allowed. To : 21.04.06. For : Exm. Of comp]ainant. Sd/- (Mrs. Lal(chung Sherpa) Chief Judicial Magistrate East & Nortli." The next order passed on the adjourned date, i.e., 21.04.2006 which has been impugned herein is as follows: - "2. 21/4/06 Complainant present with Ld. Counsel shri Sudesh Joshi. Register the same as Private Complaint. Complainant Shri Mahabir Prasad Agarwal examined. On examination of complainant on Oath and on perusal of the documents alongwith the complaint I find tliere are sufficient prjma facie materials to proceed against tlie Opposite party Mr. Santosh Mr. Himmatsinghl(a, Mr. Harish Himmatsinghka and Mr. Manoj Dutta, U/S 447/420/506/352/34 of IPC. Cognizance taken. Issue summons to the Opposite party for appearance on To ,. - 2:915106 Sd/- (Mrs. LakchLlng Sherpa) Chief Judicial Magistrate, East & North, Gan9tok." A reading of the above orders passed by the learned Chief Judicial Magistrate (E&N) at Gangtok after the petition of complaint was filed before her, makes it amply clear that when the petition of complaint was filed before her, she forwarded the same to the police for investigation without examining the complaint u/S. 200 Cr.P.C. The report submitted by the police after conducting investigation pursuant to the direction given by her was perused by her when it was placed before her on 03.02.2006. On that date the complainant was not examined, as the matter was adjourned to another date on the request of the learned Counsel for the complainant. On the adjourned date, i.e., on 21.04.2006 the learned Court examined the complainant on oath and on perusal of the documents along with the petition of complaint, came to find sufficient + prima facie material to proceed further against the opposite party and accordingly took cognizance of the offence and directed issue of summons to the opposite parties for appearance. 9, The relevant fact to be noted from the above is that the learned CJM initially adopted the procedure prescribed under Chapter XII of the code by referring the petition of complaint to the police for enquiry and report U/S.156 (3) Cr.P.C. without examining the complainant when it was filed on 24.05.2005, but subsequently switched back to the proce`dure prescribed for an enquiry by Magistrate under Sections 200 to 203 Cr.P.C. under Chapter XV of the Code. Based on these facts, the specific submission of Mr. Agarwal, the learned Counsel is that in the circumstances the learned CJM must be taken to have sent the petition of complaint to I:he police for investigation in exercise of powers vest:ed in the Court u/S. 156(3) of the Cr.P.C. without taking cognizance and the investigation so conducted by the police, must have resulted in a charge sheet or final report, to be submitted under Sec. 173 unlike in an enquiry conducted under the orders of Magistrate u/S. 202 of t:he Cr.P.C. Consequently, the examination of the complainant done by the Court u/S. 200 Cr.P.C. after the receipt of the police report submitted pursuant to the order of the Court passed by it under Sec. 156(3) is contrary to the procedure contemplated. under the Code, and, as such, the impugned order passed without complying with the relevant provisions of law suffers from a `serious illegality and thus the same is liable to be quashed. JO, It may be observed at the outset, that the above submission of the learned Counsel for the Petitioners is not without substance and cannot be lightly brushed aside. In order to ascertain the correct position illEE in the matter, a reference to the relevant provisions of law referred to by the leamed Counsel is unavoidable. The Sections of law cited by the leamed Counsel in support of his submission are, Sections 156, 200, 202 and 203. While Sec. 156 falls under Chapter XII relating to `information to the police and their powers to investigate' Sections 200, 202 and 203 fall under Chapter XV relating to `complaint to Magistrates'. In order to facilitate convenience of reference the above Ssections of law are reproduced below :- " 156. Police officer's I)ovver to investigate cognizable cases. - (1) any officer-in-charge Of a police station may, without the order Of a Magist:rate investigate any cognizable case which a Coult ha\/jng jurisdiction over the [oca[ area within the limits Of such station would have power to inqtJire into or try tJrider the pro\7isions Of Chapter XIII. (2) No proceeding of a police officer in any such case stial[ at any stage be called in question on the ground that the case was one which sLlch officer was not empowered under the section to in`/estigate (3) Any Magistrate empowered tlnder section 190 may order stich an in\/estigation as above-mentioned. 200. Examination of comt)Iai.nant - A "agiv+stratf2 tiMmq cognizance Of an offence on complaint shaH examjrie upon oath the comp[ajnant and the witnesses present, if any, and the substance Of such examination shall be redLiced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Pro\/ided that, \^/hen the complaint is made in writing, • the Magistrate need not examine the complainant and the witnesses - (a) if a public ser`/ant acting or purporting to Act in the discharge Of his official duties or a Court has made the complaint ; or U) if the Magistrate makes o`/er the case for inquiry or trial to another Magistrate under Section 192 : Pro\/ided further that if the Magistrate inaltes aver the case to another Magistrate under Section 192 after examining tlie complainant and the witrtesses, the latter Magistrate need not re-examine them. 202. Posti)onement of issue of L7rocess. - (I) Any NIETty+strdhe, on receipt Of a complaint of an offence of which he is authorized to tal{e cognizance or which has been made o\/er to him under Section 192, may, if lie thinks fit, and shall, jn a case where the accused is residing at a place beyond the area in whicli he exercises his jurisdiction postpone the issue Of process against 10 tlie accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer or by sucli otlier person as he tlijnl{s fit, for tlie purpose of deciding whether or not there is sufficient ground for proceeding : Provided that po such direction for investigation shall be made, (a) where it: appears to the Magistrate that the offence complained of is triab]e exclusively by the Court of Sessions; or (b) where the complaint has not I)een made by a CoL[rt, ::Le)S:a::eb::nm:i:i:?A:daonndo:t:uwhj:::Ssee=jop:e2S::.t(jf (2) In an inquiry under sub-section (1), the Magistrate may, if he thint(s fit, tat(e evidence of witnesses on oath : Provided that if it appears to the Magistrate that tlie offence complained of is triab[e exclusively by the Court of Sessions, he shall call upon the compl?ihant to prodt]ce all his witnesses and examine them on oath. (4) If an investigation under sub-section ('1) is made by a person not being a Police Officer, he slial[ have for that investigation a[] the powers conferred by this Code on an officer jh-charge of a police station except the power to arrest witllo ut warrant. 203. Dismissal of complaint. - If, after considering the statements on oath {if any) of the comp]ainant and of tlie witnesses and the result of tlie inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, lie slia[l dismiss the complaint, and in every such case he slial[ briefly record his reasons for so doing„. JJ, The above provisions have come up for consideration of different High Courts and the Apex Court in a number of decisions. To mention only a few, we may refer to the following decisions. I:n Jamuna Singh & Others versus Bhadai Shah raporferd in j4JJi fz9G4/ SC J5:4J /I/ 5J C ZOO/ the Apex Court referring to the two eeirTj+er derjisrone rerrdferedin R. R. Chari v. State of U.P.,1951 SCR 312: (AIR 1951 SC 207) crnd arfum in Gopal Das v. State of Assam, AIR 1961 SC 986 ofose!rverd as foNows -.- "(8) ............... „ ............................... It is well settled now that when on a petjtjon of complaint I)eing filed before him a Magistrate app[jes his mind for proceeding under the various provisions of Chapter X\/I of the Code of Criminal Procedtire, he \L.--- 11 must be held to have tal{en cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for pLlrposes of ordering investigation u/S 156 (3) or issues a search warrant for the ptlrpose of investigation lie cannot I)e said to have taken cognizance of any offence." Relying on the above decision of t:he Hon'ble Supreme Court, the then Mysore High Court in Ar, I/, Szib4at-aA y5, 5fafe af „i4iune & Anotherrepcjrfed in AIR (1969) Mysore 184 (V 56 C 37) at par7yqrayin 6 held as follows :- "6 ..,......................... Tlie examination of the complajnant contemplated by Sectio[. 200, is by a Magistrate taking cognizance Of an offence oil complaint. The effect of these pro\/isioris is, that jf there is an examiiiation Of the complajrlant by the Magistrate tat(ing cognizance and thereafter an enquiry or in\/estigation is directed to be made by a police officer, then, tthe report sLibmitted b\/ the Police Officer coiiseauent oil such enauirv or iiivestiqation, `A/ill be-a report whicli \^/ill fall under Section 202 and Section 203 Of the Cr. P. C. But, if the reDor[ is called for b\/ the Maaistrate without his ha\/ina coanizance Of tthe offence complained of on examining the comDlainant on oath, then, the report submitted bv the Do[jce consequent upon aril enauin/ directed bv the Maaistrate will be one which will fan wwithinSection156f3`OftlieCr.P.C."./empAas/saddlad/. The A:pex C/ouri in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and othersrcrporfaid.in AIR (1976) SC Z6Z? duly noticing the decision rendered in Jam"na SfngA's case (supra) held as follows :- "2 ................. „ .......,.... The bower to order Dolice investiaation under Section 156 r31 is different from the Do\^/er to direct investiaation conferred bv Sec. 202 /11. The two operate jn distinct sl.heres at different staaes. The first is exercisable at the Dre-coanizance staae, the second at the Dost-coanizance stage wlien the Maqistrate is in seisin Of the case. That is to sav in the case of a comt)taint reaardind the commission of a coonizable offchce. the Power under Section 156 /31 can be in`/eked b\/ the Madistraee before he takes coanizance Of the offence under Section 190 /11 /al. But if he once takes sucli coonizallce and embarlrs upon the Drocedtire embodied jn CliaDter XV, he is not comDeterit to s\^/itcli bacl( to the Ore- coonizance staae and a`/ail Of Section 156 r3` .,.,.................. ". ( emphasis added). Elaborating the point further, the Apex Court observed as follows :- ir J2` ................. „ .... isuch an in\/estigation embraces the entire contintlous process \^/Iiich begiris with the collection Of e\/idetice uunder Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 corries jn at a srfecie when some e\/idence has been collected bv the Maaistratee jn Droceedinqs under Chapter XV, but tlie same is deemed insufficient to tat(e a decision as to the ne)ct step in the Prescribed Procedure. In stJch a situation. the Magistrate is emirowered under Section 202 to direct, within the limits cjrcuniscribed bv that section. an investiaation "for the I)urDose oof decidiria whether or not there is sufficient around for Droceedina." Thus the object Of an investiqation under Section 202 is not to initiate a fresh case on police report but to assist the Maciistrate in comt][etina Droceediiias alreadv institLlted uuDon a complaint before him." /er7zpAasis aalded/, 12 It is thus evident that when a petition of complaint is filed before a Magistrate, such Magistrate can either order an investigation by the police under Section 156(3) or conduct the enquiry himself by examining the complainant. If he makes up his mind to refer the petition of complaint to the police for investigation he will not be required to examine the complainant and if he desires to conduct the enquiry himself, he will be required to examine the complainant and the witnesses present, if any. It is obvious that the difference in the two courses open to the Magistrate under the Code, lies in the fact that if a complaint is forwarded to the police u/S. 156 (3), no cognizance is taken and if t:he Magistrate conducts the enquiry himself, and proceeds with the examination of the complainant and his witnesses, if any, he takes due cognizance of the offence. Of course in cases where cognizance is taken by the Court by examining the complainant, it remains open to such Court, if it is unable to come to any conclusion as to the sufficiency of ground for proceeding further, to direct an investigation to be made by a police officer or by such other person as the Court thinks fit. It must however be borne in mind, that the enquiry or the investigation to be conducted by the police on the orders of the Magistrate in such a case is totally different in its ambit and i.-- 13 scope from the investigation conducted under Chapter XII after the complaint is endorsed to the police u/S. 156(3), i.e., without examining the complainant. An investigation conducted by the police on a complaint on the orders of Magistrate under Chapter XII invariably results eit:her on a charge sheet or final report as contemplated u/S 173 Cr.P.C. on receipt of which the Court can take cognizance, whereas the complainant having already been examined and cognizance having already been taken, the report to be submitted by the police under Chapter XV can be used only for the limited purpose of coming to the conclusion, as I:o whether there are sufficient materials to proceed further or not. It is this distinction which det:ermines the procedure to be followed at the trial. While the procedure laid down in Chapter XIX-A applies to cases instituted on a police report, the procedure laid down in Chapter XIX-B applies to cases instituted otherwise than on police report. Z3, It thus becomes clear that when the Magistrate applies his mind to the complaint filed befi6re him with a view to proceeding under Section 200 and the succeeding sections under Chapter XV by duly examining the complainant, he should be held to have taken cognizance of the offence within the meaning of Section 200 r/w Sec. 190(1)(a) and the enquiry so conducted by him falls under the provisions of Chapter XV. On the other hand, if the Magistrate takes action of some ot:her kind, such as ordering investigation by the police under Section 156 (3) without examining the complainant, he can.not be held to have taken cognizance of the offence. Further, while the investigation conducted under Chapter XV after the examination of the complainant is of limited scope, the •+ 14 .investigation to be conducted by the police u/S. 156 (3) embraces the entire continuous process beginning from the collection of evidence to submission of report or charge sheet u/S. 173. J4, Thus, keeping in view the