- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1681 OF 2006 1. Kishor Kirtilal Mehta, ) of Mumbai, Indian Inhabitant,) aged 67 years, residing at ) Usha Kiran, 18th Floor, ) 15, Carmichael Road, ) Mumbai - 400 026. ) 2. Charu Kishor Mehta, ) of Mumbai, Indian Inhabitant,) Aged 62 years, residing at ) Usha Kiran, 18th Floor, ) 15, Carmichael Road, ) Mumbai - 400 026. ) 3. Prashant Kishor Mehta, ) of Mumbai, Indian Inhabitant,) Aged 33 years, residing at ) Usha Kiran, 18th Floor, ) 15, Carmichael Road, ) Mumbai - 400 026. ) 4. Rajesh Mehta, ) of Mumbai, Indian Inhabitant,) through his C.A.Shri Poshan ) Manna, Aged 39 years, ) residing at 7, Acacialaan, ) Wilrijik, 2020, ) Antwerp, Belgium. ).. Petitioners Vs. 1. State of Maharashtra, ) having its office at ) Mantralaya, Mumbai 400 032. ) 2. Senior Inspector of Police, ) Gamdevi Police Station, ) Mumbai - 400 007. ) 3. Shri Vijay Kirtilal Mehta, ) 91, Maker Tower "L", ) G.D.Somani Marg, ) Cuffe Parade, ) - 2 - Mumbai - 400 005. ).. Respondents -- S/Shri Mahesh Jethmalani, Senior Counsel, with Pranav Badheka, P.G.Sabnis, Manoj Mohite, Nooruddin Dhila, Shane Sapeco and Amey Nabar, Advocates i/by M/s.Hariani & Co. for the Petitioners. Shri Ravi Kadam, Advocate General, with Smt.S.D.Shinde, APP for the Respondent Nos.1 and 2. S/Shri Amit Desai, Senior Advocate, with S.P.Kadam, Advocate for the original Respondent No.3 (Intervenor). -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.A.SAYED, JJ DATED : 1ST FEBRUARY, 2008 ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. Heard. Rule. By consent, the rule is made returnable forthwith. The learned advocates for the parties waive service. 2. The Petitioners challenge the order dated 9th June, 2006 passed by the Metropolitan Magistrate, Mumbai, in Criminal Case No.26/M/06. By the impugned order, the learned Metropolitan Magistrate has directed Gamdevi Police Station to investigate under Section 156(3) of the Code of Criminal Procedure into the complaint dated 1st June, 2006 filed by the complainant, namely, Vijay Kirtilal Mehta, the respondent no.3 (Intervenor) to this Petition. - 3 - Pursuant to the said order, MECR No.7 of 2006 under Sections 406 and 409 of the Indian Penal Code, 1860 has been registered at Gamdevi Police Station, Mumbai. 3. The challenge to the impugned order and the consequential F.I.R. is mainly on two grounds, namely, that there is no cognizable offence either of criminal breach of trust or otherwise disclosed from the complaint lodged by the complainant and even assuming that the said complaint reveals some dispute between the parties, it is of civil nature. Secondly that the challenge is on the ground of non-compliance of the provisions of law comprised under Section 188 of the Code of Criminal Procedure inspite of the fact that the alleged incident is stated to have occurred beyond the territories of India. 4. The impugned order and the F.I.R., on the other hand, are sought to be justified on the ground that the complaint apparently discloses the basic facts necessary to take cognizance of the offence by the police and that merely because the complaint does not disclose all ingredients of the offence for which the complaint is lodged, that would not be a justification for interference in writ jurisdiction, besides reminding the limited jurisdiction of this - 4 - Court while dealing with the matter at the stage of commencement of investigation in relation to a criminal offence. As regards the requirement of Section 188 of the Code of Criminal Procedure, it is sought to be contended that necessary sanction can be obtained before commencement of trial and mere absence of the sanction cannot hamper the investigation. 5. Referring to a complaint filed by the complainant before the Metropolitan Magistrate, the learned senior counsel appearing for the petitioners submitted that in order to direct investigation in exercise of power under Section 156(3) of the Code of Criminal Procedure, the complaint should disclose necessary ingredients of the offence for which the investigation is intended to be ordered. Considering the same, if one peruses the complaint, it does not satisfy the said requirement. According to the learned senior counsel, the complaint merely makes certain allegations which are neither of cheating nor of criminal breach of trust by an agent and on the contrary, the complaint merely refers to some settlement, the terms of which are said to be confidential, besides that there is no disclosure of actual entrustment or disbursement of any amount to the petitioners, and that therefore the complaint - 5 - nowhere discloses the basic ingredients of the offence of criminal breach of trust. He further submitted that the complaint refers to some understanding and settlement as also certain transactions, without revealing any involvement of the petitioners in any of such understanding, settlement or transaction, besides that all such understanding, settlement and transaction are stated to have taken place beyond the territorial limits of our country. Being so, it was absolutely necessary for the police to obtain necessary sanction in terms of Section 188 of the Code of Criminal Procedure before the commencement of investigation into the matter. Since there is no such sanction, the entire investigation should be held to be ab initio bad in law. He further submitted that even assuming that there is some settlement between the parties, in the absence of disclosure of the terms thereof which could reveal not only the involvement of the petitioner in causing breach of such settlement but which could disclose mens rea in causing such breach of agreement or settlement, there cannot be any criminal liability as such arising out of any such breach. He further submitted that it is not every breach of agreement that would give rise to a criminal liability. Attention was drawn to the decisions in the matter of Sardar Singh v. State of Haryana, Sardar Singh v. State of Haryana, Sardar Singh v. State of Haryana, - 6 - reported in (1977)1 SCC 463, of In re M.L.Verghese, In re M.L.Verghese, In re M.L.Verghese, reported in AIR (34) 1947 Madras 352, Central Bureau Central Bureau Central Bureau of Investigation v. State of Rajasthan & Ors., of Investigation v. State of Rajasthan & Ors., of Investigation v. State of Rajasthan & Ors., reported in (1996)9 SCC 735, Shubh Shanti Services Shubh Shanti Services Shubh Shanti Services Ltd. v. Manjula S. Agarwalla & Ors., Ltd. v. Manjula S. Agarwalla & Ors., Ltd. v. Manjula S. Agarwalla & Ors., reported in AIR 2005 SC 2506, M/s.Indian Oil Corporation v. M/s.Indian Oil Corporation v. M/s.Indian Oil Corporation v. M/s.NEPC India Ltd. & Ors., M/s.NEPC India Ltd. & Ors., M/s.NEPC India Ltd. & Ors., reported in AIR 2006 SC 2780, Municipal Corporation of Delhi v. Purshotam Municipal Corporation of Delhi v. Purshotam Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala & Ors., Dass Jhunjunwala & Ors., Dass Jhunjunwala & Ors., reported in (1983) 1 SCC 9, Dhanalakshmi v. R. Prasanna Kumar & Ors., Dhanalakshmi v. R. Prasanna Kumar & Ors., Dhanalakshmi v. R. Prasanna Kumar & Ors., reported in 1990 (Supp) SCC 686, Municipal Corporation of Delhi Municipal Corporation of Delhi Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., v. Ram Kishan Rohtagi & Ors., v. Ram Kishan Rohtagi & Ors., reported in (1983) 1 SCC 1, Satvinder Kaur v. State (Govt. of NCT of Satvinder Kaur v. State (Govt. of NCT of Satvinder Kaur v. State (Govt. of NCT of Delhi) & Anr., Delhi) & Anr., Delhi) & Anr., reported in (1999) 8 SCC 728, State of State of State of Tamil Nadu v. Thirukkural Perumal, Tamil Nadu v. Thirukkural Perumal, Tamil Nadu v. Thirukkural Perumal, reported in (1995) 2 SCC 449 and Om Hemrajani v. State of U.P. & Anr., Om Hemrajani v. State of U.P. & Anr., Om Hemrajani v. State of U.P. & Anr., reported in (2005) 1 SCC 617. 6. The learned Advocate General appearing for the State, drawing our attention to the pleadings in the Petition, submitted that the same nowhere discloses any grievance about absence of facts revealing cognizable offence in the complaint and the petition has been essentially filed alleging failure on the part of the investigating authorities to obtain necessary sanction under Section 188 of the Code of - 7 - Criminal Procedure. He further submitted that perusal of the complaint obviously discloses the required basic ingredients of the offence of criminal breach of trust, and therefore, there is hardly any scope for interference at this stage in the impugned order or the FIR recorded by the police authorities and/or in the investigation which is being carried out pursuant to the said order of the learned Metropolitan Magistrate. He has also drawn our attention to the decision of the learned Single Judge of Kerala High Court in Muhammed Sajeed K. v. The State of Kerala, Muhammed Sajeed K. v. The State of Kerala, Muhammed Sajeed K. v. The State of Kerala, reported in 1995 Cri.L.J. 3313. 7. The learned advocate appearing for the respondent no.3 submitted that the complaint is not an encyclopaedia of events leading to the criminal offence. Suffice it to disclose the basic facts which could reveal a cognizable offence. Merely because some of the ingredients of the offence are not revealed in the complaint, that cannot be a ground for quashing the complaint. Once the entrustment of the amount or property is disclosed with necessary particulars, merely because the manner of misuse or misappropriation thereof is not stated, that cannot be a ground for interference at the initial stage. As regards Section 188 of the Code of Criminal Procedure - 8 - is concerned, it was submitted that the matter is at the stage of investigation which is yet to be completed and the necessary sanction can be obtained before initiating proceedings or even at the commencement of trial. Attention was sought to be drawn to the decisions in the matter of Mahavir Mahavir Mahavir Prashad Gupta & Anr. v. State of National Capital Prashad Gupta & Anr. v. State of National Capital Prashad Gupta & Anr. v. State of National Capital Territory of Delhi & Ors., Territory of Delhi & Ors., Territory of Delhi & Ors., reported in 2000 Cri.L.J. 4665, A.V.Mohan Rao & Anr. v. M. Kishan Rao & Anr., A.V.Mohan Rao & Anr. v. M. Kishan Rao & Anr., A.V.Mohan Rao & Anr. v. M. Kishan Rao & Anr., reported in (2002)6 SCC 174, Ajay Aggarwal v. Union Ajay Aggarwal v. Union Ajay Aggarwal v. Union of India & Ors., of India & Ors., of India & Ors., reported in (1993) 3 SCC 609, Pratibha v. Rameshwari Devi & Ors., Pratibha v. Rameshwari Devi & Ors., Pratibha v. Rameshwari Devi & Ors., reported in 2007 (6) Supreme 554, State of West Bengal & Ors. v. State of West Bengal & Ors. v. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., Swapan Kumar Guha & Ors., Swapan Kumar Guha & Ors., reported in (1982) 1 SCC 561, Trisuns Chemical Industry v. Rajesh Agarwal & Trisuns Chemical Industry v. Rajesh Agarwal & Trisuns Chemical Industry v. Rajesh Agarwal & Ors., Ors., Ors., reported in 1999 Cri.L.J.4325, Jaikrishnadas Jaikrishnadas Jaikrishnadas Manohardas Desai & Anr. v. State of Bombay, Manohardas Desai & Anr. v. State of Bombay, Manohardas Desai & Anr. v. State of Bombay, reported in AIR 1960 SC 889, Superintendent of Police, CBI & Superintendent of Police, CBI & Superintendent of Police, CBI & Ors. v. Tapan Kumar Singh, Ors. v. Tapan Kumar Singh, Ors. v. Tapan Kumar Singh, reported in (2003) 6 SCC 175, Rajesh Bajaj v. State NCT of Delhi & Ors., Rajesh Bajaj v. State NCT of Delhi & Ors., Rajesh Bajaj v. State NCT of Delhi & Ors., reported in (1999) 3 SCC 259, State of Haryana & Ors. State of Haryana & Ors. State of Haryana & Ors. v. Ch.Bhajan Lal & Ors., v. Ch.Bhajan Lal & Ors., v. Ch.Bhajan Lal & Ors., reported in AIR 1992 SC 604, State of Orissa v. Debendra Nath Padhi, State of Orissa v. Debendra Nath Padhi, State of Orissa v. Debendra Nath Padhi, reported in (2005) 1 SCC 568 and Suresh Chandra Swain v. State of Suresh Chandra Swain v. State of Suresh Chandra Swain v. State of Orissa, Orissa, Orissa, reported in 1988 Cri.L.J.1175. - 9 - 8. At the outset, it is necessary to deal with the objection raised by the learned Advocate General regarding absence of plea in the petition about non-disclosure of cognizable offence in the complaint. The same is sought to be countered on behalf of the petitioners while submitting that though the objection relating thereto was not raised in so many words in the petition, it was argued right from the beginning and even when the matter was fully argued before another division bench, where no such grievance was ever made, and therefore, the petitioner did not seek specific amendment to the petition to that effect. In any case, it is purely a technical objection. The parties were fully aware of the points which they were required to meet in the matter and they have fully argued on all those points. Beside, objection of such nature has to be taken right at the commencement of hearing of the matter. Right from the day one, the Senior Counsel appearing for the petitioners had been arguing on the point of absence of materials in the complaint disclosing the cognizable offence. There was no justification for the learned Advocate General to wait for three days of the arguments and then to raise point about absence of plea in relation to the major defect in the complaint. The petitioners cannot be allowed to be non-suited on such technical ground. - 10 - Besides, it is not the case of the respondents that on account of raising of such plea, without specific ground in that regard in the petition, they are in any manner prejudiced or that in reply to the said plea they need to place on record any affidavit or new material. The plea is to be considered on the face of the complaint and annexures thereto and not on the basis of any extraneous materials. It is pertinent to note that no such objection is raised on behalf of the respondent no.3, the complainant. It is also not in dispute that when the matter was fully argued before another bench, such an objection was not raised and therefore, as rightly submitted by the learned senior counsel for the petitioners, there was no need for the petitioners to amend the petition on that count. The objection in that regard, therefore, is devoid of substance. 9. Before considering the rival contentions in the matter, it would be worthwhile to take note of some of the decisions which are sought to be relied upon in the matter. In Purshotam Dass Jhunjunwala’s Purshotam Dass Jhunjunwala’s Purshotam Dass Jhunjunwala’s case (supra), case (supra), case (supra), it was ruled by the Apex Court that if the materials placed before the Magistrate are sufficient to make out a prima facie case for summoning the accused, it would not be a fit case for - 11 - the High Court to exercise its discretion under Section 482 and to quash the proceedings at the instance of the accused. That was a case wherein the the complainant clearly described the active role played by the accused person and the extent of their liability in relation to the offence alleged against the accused. 10. In Dhanalakshmi’s case (supra), Dhanalakshmi’s case (supra), Dhanalakshmi’s case (supra), it was held by the Apex Court that since there were specific allegations in the complaint disclosing ingredients of the offence of cognizable nature, in the absence of circumstances to hold prima facie that the complaint was frivolous, there was no justification for the High Court to interfere under Section 482 of the Code of Criminal Procedure. Such interference to quash the proceedings can be appreciated only in cases where the complaint does not disclose any offence or is either frivolous, vexatious or oppressive and that if the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High Court to quash the same in its inherent powers. The Apex Court recorded a note of caution that there cannot be meticulous analysis of the case before trial to find out whether the case would end in conviction or not and the - 12 - complaint has to be read as a whole and if it appears on a consideration of allegations in the light of the statement on oath of the complainant that there is no material to show that the complaint is malafide, frivolous or vexatious, then in that event there could be no justification for interference by the High Court. 11. In Ram Kishan Rohtagi’s case (supra), Ram Kishan Rohtagi’s case (supra), Ram Kishan Rohtagi’s case (supra), it was ruled that the test to be followed while quashing the proceedings at initial stage is that taking the allegations in the complaint as they are without adding or subtracting anything, and if no offence is made out then the High Court would be justified in quashing the proceedings in exercise of its inherent powers. 12. In Satvinder Kaur’s case (supra), Satvinder Kaur’s case (supra), Satvinder Kaur’s case (supra), dealing with the powers of the High Court to quash the proceedings at initial stage, it was held that the legal position is well settled that if an offence is disclosed, the Court would not normally interfere with the investigation of the case and would permit the investigation into the offence alleged to have been committed. If the FIR, prima facie, discloses the commission of an offence, the Court does not normally - 13 - stop the investigation. Otherwise, it would amount to trench upon the lawful power of the police to investigate into cognizable offences. It is settled law by a catena of decisions of the Supreme Court that for the purpose of exercising its power under Section 482 of Cr.P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint and the documents accompanying the same and it has no jurisdiction to examine the correctness or otherwise of the allegations. At that stage, there need not be scrutiny of the materials to ascertain the truthfulness of the allegations made in the complaint. 13. In Thirukkural Perumal’s case (supra), Thirukkural Perumal’s case (supra), Thirukkural Perumal’s case (supra), it was held that while dealing with the matter at the initial stage, the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence to be collected during the investigation. 14. In Pratibha’s case (supra), Pratibha’s case (supra), Pratibha’s case (supra), it was held that when an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence and for - 14 - bringing the offender to book. If the Court interferes with the proper investigation in a case where the offence is disclosed, the offence could go unpunished to the serious detriment of the welfare of the society and the cause of justice could suffer, and it is on the basis of this principle that the Court normally does not interfere with the investigation of a case where a cognizable offence is disclosed. Whether an offence has been disclosed or not would necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court normally would not interfere with the investigation. 15. In Bhajan Lal’s case (supra), Bhajan Lal’s case (supra), Bhajan Lal’s case (supra), the Apex Court, after taking into consideration the various decisions passed by the Apex Court on the aspect of the scope of powers of the High Court to interfere at the initial stage, laid down certain guidelines which are to be observed while exercising such powers. The guidelines are as under:- "1. Where the allegations made in the First Information Report or the complaint, even if they are taken at - 15 - their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a - 16 - non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are to absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted ) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. - 17 - 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 16. Considering the law laid down by the Apex Court as regards the power of the High Court to interfere in criminal matters at the initial stage, it cannot be disputed that the legal position is well settled that in cases where the complaint prima facie discloses necessary ingredients of an offence of cognizable nature, then in such cases the Court cannot scuttle the powers of the police to investigate nor can interfere therein unless there are justifiable reasons to do so. Undoubtedly, the complaint or the FIR in that regard has necessarily to disclose the basic ingredients of the offence for which the investigation is sought to be commenced or ordered to be commenced. In case the complaint or the FIR fails to disclose basic ingredients of the offence concerned, certainly it can warrant interference. Undoubtedly, it is also to be borne in mind that while - 18 - ascertaining as to whether the complaint or the FIR discloses necessary ingredients of the concerned offence or not, it is not permissible to embark upon the enquiry as to the reliability or genuineness of the allegations in the complaint or the FIR. Nevertheless, the complaint or FIR should necessarily disclose the basic ingredients of a cognizable offence. When we refer to the complaint or FIR for the purpose of ascertaining whether the same discloses necessary ingredients of the cognizable offence or not, it would obviously include the materials accompanying and forming part of the complaint or FIR. 17. It should, however, be borne in mind that the requirement of disclosure of essential ingredients of the offence would not mean verbatim reproduction of all the ingredients of the