IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. 13062-M of 2005 DATE OF DECISION : 27.11.2006 M/s Larsen and Toubro Ltd. .... PETITIONER Versus Central Bureau of Investigation and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Ashok Aggarwal, Senior Advocate, with Mr. Subhash Gulati and Mr. Rajnish Narula, Advocates, for the petitioner. Mr. Chanchal K. Singla, Advocate, for the CBI. Mr. N.S. Gill, AAG, Punjab. Mr. H.S. Riar, Senior Advocate, with Mr. K.S. Nalwa and Mr. Rahul Gupta, Advocates, for respondent No.6. Mr. K.T.S. Tulsi, Senior Advocate, with Mr. K.S. Nalwa and Mr. V. Hari Pillay, Advocates, for respondent No.7. * * * Initially, the petitioner had filed this petition under Articles 226/227 of the Constitution of India, which was treated as one under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `the Code'), vide order dated February 25, 2005, passed by this Court. 2. M/s Larsen and Toubro Limited (hereinafter referred to as the petitioner company) has filed this petition for issuing direction to respondents No.1,2 and 5 to register an FIR against M/s Abhishek Industries Limited-respondent No.6 (hereinafter referred to as the respondent company) and its Director Rajinder Gupta-respondent No.7, for Crl. Misc. No. 13062-M of 2005 -2- committing the offence of criminal breach of trust, cheating, criminal intimidation, forcible taking of signatures in order to commit fraud/ extortion, mis-appropriation of equipments, material and machinery of the respondent company and for false implication of the petitioner company in a criminal case, which were committed by them on 27.7.2004 and 28.7.2004. 3. The facts and events, which are necessary for the disposal of this case, are re-produced in chronological order. 4. The petitioner company entered into a contract on 14.11.2003 with the respondent company for the construction of weaving and processing unit of the respondent company at Village Dhaula, Barnala (Punjab). As per the terms of the contract, the said work was required to be completed by the petitioner company by 30.4.2004, which was subsequently extended upto 31.7.2004. It is the case of the respondent company that in a meeting held between the petitioner company and the respondent company on 27.7.2004, it was agreed that the petitioner company would complete the work and wind up the site by 31.8.2004, failing which the petitioner company shall not be given further opportunity and the balance work shall be completed at the risk and cost of the petitioner company. Though it is the case of the petitioner company that signatures of Shri S. Subramaniam, their Construction Manager, were taken forcibly under duress, but the matter was not reported to the police on the same day or on the next day. 5. On 28.7.2004, one employee of the respondent company, namely Basant Singh, lodged a complaint to the police alleging therein that at about 10.00 a.m., when the complainant along with other officers of the company was taking routine round at the site of construction, they found that proper material was not being used by the representatives of the petitioner company. When they pointed out the defects, the officials of the petitioner company became agitated. Suddenly, certain officials of the petitioner company and many workers assembled and Shri S. Subramaniam, Construction Manager, started hurling filthy abuses and he exhorted the group of officials and labourers to catch hold the officers of the respondent Crl. Misc. No. 13062-M of 2005 -3- company and to threw them into furnace of the boiler of the adjoining plant. Thereupon, a group of about 10 workers from the said mob, who were armed with lathies, came forward and one of the workers hit the lathi in the head of the complainant Basant Singh in order to kill him. The other workers attacked the officials of the respondent company with their weapons and tried to catch hold them and gave beatings to them. Subsequently, those workers assembled in front of the Administrative block of the Project Officer of the respondent company and started pelting stones and raising slogans and they caused damage to the machines installed in TTD Unit II. On the basis of this complaint, FIR No. 126 dated 28.7.2004 was registered against the officials and workers of the petitioner company at Police Station Tapa under Sections 307/364/452/427/511/148/149/120-B IPC. In the FIR, the complainant specifically named 16 officials of the petitioner company who had participated in the assault. 6. On 29.7.2004, petitioner company wrote a letter to the DGP, Punjab, requesting for a fair investigation in the aforesaid FIR by some senior police officer from outside Police District Barnala and for cancellation of the case. According to the petitioner company, its officials were falsely implicated in the FIR. In the said letter, it was alleged that the respondent company is having vast influence among the civil as well as police officials of Police District Barnala and with the said influence, they got registered the false FIR on concocted story, which is highly improbable. It is mentioned here that in the said letter, neither counter version was given nor any prayer for registration of the case on the said version was made. 7. On 31.7.2004, respondent company sent a notice to the petitioner company under clause 6.2 of the contract, calling upon the petitioner company to complete the project as per the contract within seven days, failing which the contract would be terminated. On 3.8.2004, a letter was written by the petitioner company to the Home Minister, Government of India, Director General, Central Bureau of Investigation and the Chairman, National Human Rights Commission requesting for intervention Crl. Misc. No. 13062-M of 2005 -4- and ordering an impartial enquiry into the alleged occurrence. It was alleged that a false case was foisted against the officials and workers of the petitioner company by the respondent company. On the other hand, the officials and labourers of the petitioner company were assaulted and criminally intimidated by the officials and employees of the respondent company. With the said letter, a note was annexed, in which it was alleged that the petitioner company had completed 90% work of the contract by 31.7.2004. It was also alleged in the note that on 27.7.2004, Mr. S. Subramaniam, Construction Manager of the petitioner company was threatened at gun point and was made to sign the minutes of meeting in the office of respondent No.7, as per which the petitioner company was required to either leave the site on the next day i.e. on 28.7.2004 or to complete the work by 31.8.2004. It was further alleged that on 28.7.2004, respondent No.7 and some other officers of the respondent company came at the site and beat up some labourers of the petitioner company without any rhyme or reason. Thereafter, 60-70 police personnel reached the site and instead of taking action against the respondent company, some of the senior officials of the petitioner company were taken to the police station, whereafter, they were taken into custody. It was alleged that a large number of machinery, equipments and material lying at the site have been illegally removed by the employees of the respondent company and a false case was registered against the officials of the petitioner company. 8. On 26.8.2004, the respondent company wrote a letter to the petitioner company about the termination of contract, because the petitioner company failed to resume work despite the legal notice served upon it. On 28.8.2004, another letter was written by the respondent company to the petitioner company informing the taking over of the project site and works with immediate effect in terms of the contract dated 14.11.2003. On 31.8.2004, a civil suit was filed by the respondent company seeking permanent injunction restraining the petitioner company and its officials from interfering in the due execution/completion of construction work of Crl. Misc. No. 13062-M of 2005 -5- respondent company's weaving and processing unit. Vide order dated 2.9.2004, passed by Additional Civil Judge (Senior Division), Barnala, ad- interim injunction was granted in favour of the respondent company restraining the petitioner company from interfering in the due construction work of the disputed project. This interim order was confirmed by the civil court on 16.12.2004, after hearing counsel for the parties. On 28.9.2004, the petitioner company filed a petition under Section 8 of the Arbitration and Conciliation Act for referring the matter to arbitration and for rejection of the aforesaid civil suit. The said application was dismissed by the civil court on 16.10.2004. 9. In FIR No. 126 dated 28.7.2004, after investigation, charge sheet was prepared on 28.10.2004 and it was filed in the court on 11.11.2004 under Sections 308/452/364/511/382/506/120-B/427/148/149 IPC. On 28.5.2005, charges were framed against the accused in the said case by Additional Sessions Judge, Barnala and the case was fixed for prosecution evidence. It is also relevant to mention here that Crl. Misc. No. 53127-M of 2004 was filed by the petitioner company for quashing of aforesaid FIR, which was dismissed as withdrawn with liberty to challenge the charges. Vide order dated 13.9.2005, passed by this court, Crl. Revision No. 1712 filed against the charges has also been dismissed. 10. On 2.2.2005, the present petition was filed for registration of the case against the respondent company and its officials including its Managing Director, alleging therein that in spite of the information given by the petitioner company to the DGP of the State vide letter dated 29.7.2004 and to the National Human Rights Commission vide letter dated 3.8.2004, disclosing the cognizable offences allegedly committed by the officials and employees of the respondent company, no FIR has been registered so far, as the respondent company is having influence in the District. Therefore, a direction has been sought for registration of criminal case against them. It is stated that in the letter dated 3.8.2004, it was specifically alleged that on 27.7.2004, Shri S. Subramaniam, the Construction Manager of the petitioner Crl. Misc. No. 13062-M of 2005 -6- company was threatened at gun point and was made to sign the minutes of meeting in the office of respondent company under duress. On 28.7.2004, the officials and other employees of the respondent company came to the site and gave beating to the employees and workers of the petitioner company without any rhyme or reason and some of the senior officials of the petitioner company were taken to the police station where they were taken into custody. It was further stated that officials and employees of the respondent company removed and mis-appropriated the machinery and equipments of the petitioner company, which were lying at the construction site. These allegations, according to the petitioner company, clearly disclose the cognizable offence and on information given by it, the police was duty bound, under Section 154 of the Code, to register a criminal case against the guilty persons, but the local police under the influence of the respondent company did not register the case against the guilty persons. 11. The State of Punjab, Shri G.S. Dhillon, Senior Superintendent of Police, Sangrur-respondent No.3, SHO, Police Station Tapa, District Sangrur-respondent No.4 and respondents No.6 and 7 filed their separate replies to the petition. 12. Respondent No.4, in his written statement, stated that the petitioner company neither approached the answering respondent nor made any written complaint to him or to the Superintendent of Police for registration of a criminal case. However, the petitioner company approached the National Human Rights Commission for fair investigation in the FIR. It has been further stated that on directions of the Commission, the matter was enquired into and the allegations were found to be false. Thereupon, a report was sent to the Commission through Deputy Commissioner, Sangrur, vide memo dated 11.1.2005, copy of which has been annexed with the reply. In the reply, filed on behalf of the State of Punjab, it has been stated that the petitioner company has an alternative remedy under Section 200 of the Code for filing complaint regarding its counter version. The Senior Superintendent of Police, Sangrur-respondent No.3, in his reply, has stated Crl. Misc. No. 13062-M of 2005 -7- that he has been un-necessarily implicated on the false allegations. He never remained Senior Superintendent of Police, at Barnala, where the alleged incident took place nor he was supposed to make an enquiry because Barnala is a separate Police District headed by another Senior Superintendent of Police. 13. Respondent company and its Director (respondents No.6 and 7) in their reply have stated that the petitioner company has approached this court by suppressing the material facts. The pendency of civil suit between the parties has not been disclosed. The filing of the petition for quashing of FIR and challenging the order of charge have also not been disclosed. The petitioner company has an alternative remedy and in the facts and circumstances of the present case, the instant petition is not maintainable. It has been stated that the allegations levelled by the petitioner company are totally false and during the enquiry made by the authorities on the complaint made by the petitioner company to the National Human Rights Commission, the allegations were found to be false. It has been denied that signatures of Shri S. Subramaniam, Construction Manager of the petitioner company, were obtained at gun point. No complaint was lodged by the said Construction Manager against the answering respondents in this regard. Even in the first complaint made by the petitioner company to the DGP on 29.7.2004, no such allegation was levelled. These allegations are after- thought. In the FIR, lodged on the complaint of the official of the respondent company, a detailed enquiry was held, investigation was conducted and thereafter, challan was filed and charges have been framed. Now the said case is stated to be pending at the stage of prosecution evidence. In view of these facts, a prayer has been made for dismissal of the petition. 14. Shri Ashok Aggarwal, learned Senior Counsel, assisted by Shri Subhash Gulati and Shri Rajnish Naruala, Advocates, for the petitioner company, while referring to the decisions of the Supreme Court in State of Haryana and others versus Ch. Bhajan Lal and others, AIR 1992 Supreme Crl. Misc. No. 13062-M of 2005 -8- Court 604, Ramesh Kumari versus State (N.C.T. of Delhi)and Ors., 2006 I Apex Decisions (Crl.) S.C. 505 and Lallan Chaudhary & Ors. versus State of Bihar & Ors., Criminal Appeal No. 1047 of 2006, decided on October 12, 2006, submitted that when an information disclosing a cognizable offence is given to the incharge of a police station by a person, or he otherwise receives such an information, the said police officer is duty bound to register the FIR for the alleged offence. Learned counsel submitted that Section 154 of the Code raises a statutory duty upon a police officer to register the case as disclosed in the complaint and then to proceed with the investigation. He has no other option except to register the case on the basis of such information. Learned counsel submitted that it has been held by the Supreme Court in these judgments that the provision of Section 154 of the Code is mandatory, the police officer concerned is duty bound to register the case on receiving the information disclosing the cognizable offence. The reliability, genuineness or credibility of the information is not a condition precedent for registration of the case. A police officer on a preliminary enquiry cannot refuse to register a case on the ground that information is false or not reliable or credible. 15. Learned Senior Counsel for the petitioner company submitted that in this case, though the written information was not given to the SHO and Superintendent of Police of the concerned area, but they received the information, when the complaint made by the petitioner company to the National Human Rights Commission came to the SHO of the concerned area for enquiry. While referring to the reply filed on behalf of the State of Punjab, learned counsel submitted that the letter dated 3.8.2004, sent by the petitioner company to the Commission was received by the police on 29.10.2004, as has been stated in the letter written by Senior Superintendent of Police, Barnala to Deputy Commissioner, Sangrur, intimating that in the complaint made by the petitioner company to the National Human Rights Commission, an enquiry was conducted and the allegations made by it were found to be false. But in spite of the information gathered by the police from Crl. Misc. No. 13062-M of 2005 -9- the said letter, no FIR was registered, and enquiry was conducted without registering the case, which, according to the learned counsel, is not permissible. It was also submitted that in FIR No. 126 dated 28.7.2004, challan was prepared on 28.10.2004, which was submitted to the court on 11.11.2004. Learned counsel contended that from the perusal of the challan, copy of which has been placed on record, it appears that version of the petitioner company pertaining to the occurrence dated 27.7.2004 and 28.7.2004 was not considered at all, as there is no reference in the challan that the version given by the petitioner company was found to be false. 16. Shri N.S. Gill, AAG, Punjab, Shri H.S.Riar, learned Senior Counsel, assisted by Shri K.S. Nalwa and Shri Rahul Gupta, Advocates, for respondent company (respondent No.6) and Shri K.T.S. Tulsi, learned Senior Counsel, assisted by Shri K.S. Nalwa and Shri V. Hari Pillay, Advocates, for respondent No.7, submitted that in this case, undisputedly, the petitioner company or any of its employees, including Shri S. Subramaniam, Construction Manager, neither made written or oral complaint about the alleged incidents of 27.7.2004 and 28.7.2004 to the SHO of the concerned area or to the Senior Superintendent of Police of the District nor they have made any written complaint to the Judicial Magistrate of the area under Section 156 (3) or Section 200 of the Code. On 29.7.2004, a letter was written by the petitioner company to the Director General of Police, Punjab, requesting him for a fair investigation by an officer from outside Police District Barnala in FIR No. 126 dated 28.7.2004 registered against its employees. In the said letter, no counter allegations, as made in the petition, were made. Subsequently, on 3.8.2004, a letter was written to the Home Minister, Government of India, Director General, Central Bureau of Investigation and the Chairman, National Human Rights Commission and when the Commission referred that letter to the district administration for enquiry and report, the allegations levelled in the said letter were enquired into and were found to be false. Learned counsel submitted that on such an enquiry sought by the National Human Rights Commission, the police is not Crl. Misc. No. 13062-M of 2005 -10- required to register a criminal case, as the petitioner company was having a remedy for making a written complaint to the SHO of the concerned area or to the Senior Superintendent of Police of the District or to file a complaint before the Judicial Magistrate. Learned counsel submitted that when the complaint was received through the National Human Rights Commission, it was enquired into by the police and the allegations were rightly found to be false, because apparently the allegations were concocted after registration of the case against the officials and employees of the petitioner company. This is clear from the fact that in the letter dated 29.7.2004, written by the petitioner company immediately after the registration of the case, no such allegations were levelled and only the prayer was made for a fair enquiry in the FIR and cancellation of the same, as according to the petitioner company, it was lodged on false facts. At that time, there was no cross version. Learned counsel contended that this fact in itself proves that the allegations regarding the occurrence of 27.7.2004 and 28.7.2004, levelled by the petitioner company subsequently in its letter dated 3.8.2004 are false and concocted. 17. Learned counsel further submitted that the inherent powers of this court under Section 482 of the Code are discretionary powers and the same are to be exercised in an exceptional or extra ordinary situation to prevent the abuse of the process of the court or otherwise to secure the ends of justice. Learned counsel further submitted that such extra ordinary powers are not to be exercised, when the complainant has an effective and alternative remedy. As per the scheme of the Code, the petitioner company has an alternative remedy to make a complaint to the Judicial Magistrate for referring the same under Section 156 (3) of the Code for registration of the case or under Section 200 of the Code for taking cognizance of the alleged offence against the accused. In support of their contention, learned counsel for the respondents referred to the decision of the Supreme Court in All India Institute of Medical Sciences Employees' Union (Regd.) versus Union of India and others, (1996) 11 Supreme Court Cases 582, Crl. Misc. No. 13062-M of 2005 -11- Gangadhar Janardan Mhatre versus State of Maharashtra and others, (2004) 7 Supreme Court Cases 768 and Minu Kumari and anr. versus State of Bihar, 2006 (3) RCR (Criminal) 271, wherein it has been held that when on on an information disclosing the cognizable offence laid with the police, no action is taken, the complainant is given power under Section 200 of the Code to lay the complaint before the Judicial Magistrate having jurisdiction to take cognizance of the offence. If such complaint is made to the Magistrate, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit the report. If on recording the evidence, he finds that no offence is disclosed to take further action, he is empowered to dismiss the complaint under Section 203 of the Code and in case he finds that there is prima facie evidence disclosing an offence, he is empowered to take cognizance of the offence and to proceed against the accused. It has been held in these judgments that in case, the complainant does not adopt either of the procedure provided under the Code, he is not entitled to approach the High Court by filing petition for issuing a direction to register the case and investigate the alleged offence. 18. Learned counsel submitted that the judgment in Ramesh Kumari versus State (N.C.T. of Delhi)and Ors., and Lallan Chaudhary & Ors. versus State of Bihar & Ors., (supra) are not applicable to the facts and circumstances of the case in hand and they are distinguishable on facts. In Ramesh Kumari's case, the written information disclosing the cognizable offence was given to the SHO of the concerned area and when the case was not registered, the matter was brought to the notice of the Police Commissioner. Even then, when the FIR was not registered, petition under Section 482 of the Code was filed before the High Court, which was dismissed. In that situation, it was held by the Supreme Court that when a written information disclosing the cognizable offence was given to the police, then under Section 154 of the Code, the police was duty bound to register the case. Similarly in Lallan Chaudhary's case, a complaint was Crl. Misc. No. 13062-M of 2005 -12- filed before the Judicial Magistrate disclosing the cognizable offences under various offences under various Sections of IPC. The said complaint was referred by the Judicial Magistrate to the police under Section 156 of the Code. The SHO concerned did not register the case under those offences. In that situation, it was observed that when the complaint was referred by the Judicial Magistrate to the police, the police was duty bound to register the case for all the offences mentioned in the complaint. Learned counsel for the respondents submitted that in these two cases, the written information was given to the police disclosing cognizable offence and in spite of that, the FIR was not registered. In that situation, it has been observed by the Supreme Court that when a written information is given to the SHO of the