HIOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITIONfCR.) No. 3647/2009 PETITIONERS Srinivas Gundlnri and others RESPONDBNTS Versus M/s SEPCO Electric Power Construction Corporation ahd oftiers O R D BR Postfor 3-9-2009 Sd/- N.K.Agrawal Judge " < ; HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PEynTION fCR.) No. 3647/2009 PETITIONERS ACGUSED ^ RESPONDENTS COMPLAINANT ^s^- 1. Snnivas Gundluri, S/o Shri G. Venkateshwar Rao, aged 44 years, Managing Director and Principal Officer of M/s SSVG Engineering Projects Pnvate Limited, 12-2-460, Srinivasa Guridluri Complex, Amba Garden, Medhipatnam, Hyderabad (Andhra Pradesh) 2. Smt. Bharafhi Devi Gundluri W/o Shrinivas Gundluri, aged 39 years, Director and Proinptor of M/s SSVG Engineering Projects Private Limited, 12-2- 460 , Srinivasa Gundluri epmplex, Amba Garden, Medhipatnam, Hyderabad (Andhra Pradesh 3. SSVG Engineering Projects Private Limited, Company incorporated under the Companies Act, 1956, having its registered office at 12-2-460, Srinivasa Gundluri Complex, Amba Garden, Medhipatnam, Hyderabad (Andhra Pradesh) Versus 1. M/s SEPCO Electric Power Construction Corporation, 150, Jinger Road, Jinan, Shangdong (China) having its site pffice at SEPCO Prqject OfHce, BalGC) Nagar Korba, (Chhattisgarh) fhrcrugh its authorized representative Mr. Wang Chengeai, S/o Mr. Wang Xianli, aged about 34 years, R/o Hong Lou Road, Jinan City, Shang Dong and presently residing at SEPCO Prdject Office, Balco NagarKorba (Chhattisgarh) 2. Unioh Bank of India, Branch Somajiguda, 6-3-,347/9/4, Dwarakapuri Colony, Hyderabad 500082 (AP) 3. Chief Manager, Union Bank of India, Branch Somajiguda, 6-3- 347/9/4, Dwarakapuri Colony, HyderabadSOO 082 4. Station House OfBcer, Police Station, Balco Nagar, Korba, District Korba (Chhattisgarh) (Sinele Bench: Hon'ble Mr. N.K. Agarwal, J.l Present : Shri Manindra Shrivastava, Sr. Advocate with Shri Devendra Patel and Shri Anand Verma, Advocate for the petltioners. Shri Ravi Shankar Prasad, Sr. Advocate with Shri ^ Sanjay K. Agrawal and Shri B.D. Guni, Advocates for ^ ^^^^^^^^^^^ fe Shri Prashant Mishra, Advocate General with Shri Satish Gupfa, Govt. Advocate for the respondent no. 4. ORDER (%-9-2009) 1. The instant petition is directed under Artiele 226 of the Constitution of India inter alia claiming following reliefs:- i. to eall for the entire records of the complairit case pending in the Court ofMagistrate Class I, Korba (Chhattisgarh) for perusal as also documentsin possession ofthe respondent Station House OfEcer, Police Station, Balco Nagar, Korba. r • . ' . • • . '. • ii. to issue an appropnate writ in the nature of certiorari qyashing and setting aside the order dated 4-7-2009 passed and other proceedings drawn by the Magislrate Class I, Korba in the matter of complaint by the coniplainant Company. iii.' to issue a writ of prohibition prohibiting all further proceedings pending in the Court of Magistrate Class I, Korba in connection with complaint lodged by the coinplainant Company M/s SEPCO Electric Power Construction Gorporation. 1 ^ ^lfk iv. to issue an appropriate writ in the nature of certiorari quashing communication dated 3-7-2009 of the respondent Bank relating to freezing of petitioners Company's account and issue command through a writ of mandamus to allow the petitioners Company to pperate its aceount as referred iri the petition. V. 'Any otherrelief, which this Court thinks Et and proper. 2, Brief facts as per record necessary for disposal of this petition are as under:- i. ^ Pursuant ta an intemalional tender, the respondent No. 1 has been awarded an EPC BIock (Engineering, Procurement and Constructioh) by M/s Wardha Power Ltd. for supply, construction, erection and con'tmissiQning 6f 3600 MW co£il based Power Plant at Nariara, Akaltara, Distt. Janjgir Champa. ii. In pursuance of the meeting held on 8-6-2009, a work order was issued by the respondent No. 1 to the petitioners for work ofsite clearing ahd grading for main Power House and CHP area, cutting and Blling of earth material to achieve required grading, providing temporary storm water drainage and other construction works vide letter dated 16th June, 2009. The value of the work was Rs. 42,92,19,800/-. Period for completion was fixed as two months. As per the said work order, 50% of the contract value was payable as advance, One of the other conditions of the work order was fhat the work was awarded on -assyrance given by the petitioner to complete the work as .perthe timeschedule. — ' iiL Vide letter dated 25U1 June, 2009, the respondent No. 1 issued a cheque No. 664051 dated 25th June, 2009 drawn on ICICI Bank, Korba fbr Rs. 20,97,46,840/- after ^v l-%^^SBSSSKi%S5;'B!»'flS5%'-?;Si ^K deducting TDS of Rs. 48,63,060/—towards advance payment as erivisaged under the work order. It was also written in the said letter that fhe work has to be eommenced not later than 29th June, 2009, failing which the contract shall be terminated and demand of refund of advance payi'nent shall be raised. iy.As per the petitioner, the petitioner vide letter dated 28-6- 2009, requested the officer of respondent No. 1 to hand over the site covered under the work order (this letter is neither part of the CQinplaint nor is admitted by the respondenl No. 1). v. Vide letter dated 29th June,2009, the respondeht No. 1 wrote a letter to the petitioner for refund of the advance as according to them, the petitioner failed to mobilize the man power and equipment by 29th June, 2009. vi; On the basis of the complaint of respondent No. 1 dated 2nd July, 2009, a lefter/communication was issued by the Police Station, Balco Nagar, Korba to the Union Bank of India, Somajiguda Branch, Hyderabad to freeze the operation ofpetitioner company's account. r vii. Qh 4-7-2009, the respondent NQ. 1 filed a complaint under Section 200 of Code of Criminal Procediire, 1973 (briefly, the Code) against the petifioners alleging charge of cognizable offence along with an application under sub- section 3 of Section 156 of Code for sending the complaint for investigating in terms of Section 156(3) of fhe Code to the jurisdictional police station. viu. The frial Court after perusing the coinplaint filed by the respondent No. 1, sent the original complaint along with annexures to the Station House Officer, Police Station, Balco Nagar, Korba directing to register F.I.R. after du& IX. 3. 4. ^© enqi^iry and to file charge sheet after eompleting the ; inyestigatiori. ,,. , : Vide order dated 8-8-2009 passed in M.er.C. no. 1634/2009, learnedSingle Bench of this Court granted bail to the petitioner No. 2 on the conditions that she shalt appear before the trial Court on each and every date giyen by the said Court; she shall cooperate with fhe investigation and make herself available for inteErogation before the inyestigating Officer, as and when sumindned; she shall not, directly or indu'ectly,make any induceineht, threat or prQmise to any person aGquainted with fhe facts of the case so as t6 dissuade him from disclosing such ^ facts to the Court or to any poliee offrcer; and she shallnot leave the country withput prior permission of the trial Court. , The respondent No. 1 and 4 filed their returns. The petitioners filed their rejomder. The raatter was heard on 13-8-2009 and to facilitate the parties to submit their written submission, the matter was iixed fbr 17-8-2009 as part heard. On 17-8-2009, the petitioners moved an applieation seeking ameridment to add in the reliefs clause para 10.2 which reads thus:- < : "as also the colnplaint in its entirety including complaint, FIR registered on 16-7-2009 pursuarit to impugned order dated 4-7-2009." 5. Shri Manindra Shriyastava, leamed Sr. Advoeate, for the petittoners would submit that the Magistrate is empowered either to proceed under Section 156(3) ofGbde orfo . proceed under the provisions cpntained in Chapter XV and has discrefion to direct investigation bi.it ohly ill ;\- ',? accordance with the procedure and upon fulfillment of conditions enuraerated in Section 202 of Code. He would further submit that even otherwise, the order is not sustainable as the Magistrate's jurisdiction under Section 156(3) of Code is confined only to direct investigation to be rnade by registering a case and not to dictate fhe police to necessarily file a charge sheet. Police carrying investigation may either iile a charge sheet or a Enal report. Use ofword "Abhiyog Patra" in the order by the Magistrate clearly shows that the Magistrate has cominanded the poliee to file a charge sheet and thereby has commanded the police fo hold investigation with a particular resx-ilt only which is beyond the scope 6f Section 156(3)0fcode. Jfk He would further submit fhat the complalnt filed by the respondents does not disclose any cognizable pffence as alleged t6 have been committed under Section 406 arid 420 of I.P.C. The complaint does not satisfy the requirement and test laid down by the Supreme Court in State of Haryana -V- Bhajanlal reported in AIR 1992 SC 6Q4 and therefore, the complaint as weU as the investigation carried in furtherance ofthe said complaint is wholly without jurisdiction. He would also submit that in view of the above complaint, the order impugned and the F.I.R. registered in piu-suance of the order impugned are liable to be quashed.It was further argued that in the facts and circumstances of the case, the amendment sought is Glarifactory in nature and deserves to be aUowed. Per contra, Shn Ravi Shankar Prasad, learned Sr, Couhsel, appearing for the respondent No. 1 would submit that Section 156(3) cifCode empowers the learried Magistrate to direct the police to investigate comraission ofoffence under .^- Chapter XII df the Code. The order impugned passed by learned Magistrate is correct in law; leamed Magistrafe has power to direct investigation in cognizable cases under Section 156(3) read wifh Seetion 190 of the Code; Magistrate is fillly einpowered by Section 156(3) of Gode to send a complaint to the appropriate police station for investigation. Oncesuch a direGtion is given under sub- section (3) ofSection 156 ofthe Code, poliGe is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to subrait a 'police repprt'm accordance with Section 173(2), thereafter the Magistrate may tgike cognizance under Section 190 (r)(b) [but not under Section 190(l)(a)]. For this reliance has been placed upon the judgment of Supreme Court iri case of Mohd. Yousufv. Afaq Jahan reported in (2006) 1 SCC 627. He would submit that Ghapter XII of the Code .cpntains provision relating to 'information to police and their powers to irivestigate', whereas Chapter XV which contains Section 202 deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. The provisions of the above two chapters deal with frwo different facets altogether, fhough there could be a commQn factor i.e. complaint ffledby a person. Section 156, falling withiri Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a poUce officer". But the mvestigation envisaged in Section 202 is different from the investigatiori contemplated in Section 156 of the Code. Therefore, the submissions made by the petitipners in this context are clearly opposed to the law laid down by the Apex Court. Placing reliance in the matter of Sakiri Vasu -v- State of U.P. reported in (2008) 2 SCC 409 Shri xy A^' Prasad would submit that if an application under Section 156 pf the Code is Eled before the Magistrate, the Magistrate can direct FIR to be registered and also can direct proper investigation to be made in a case where acGording to fhe aggrieved person no proper investigation was made. The Magistrate can also under the same prQvision^ monitor the investigation to ensure a proper ^^^ ^ would also submit that the seope of Seetion 200-202 of the Code is different and does not in any manner affect or infringe the right of the Magistrate to direct investigation in exercise pf powers under Section 156(3) of the Code. He would further submit that inherent pcywer/jiirisdictio ofthe High Coiirt to quasti investigation at the initial stage has to be used sparingly only in the "raTest of rare" cases. 7. Shri Prashant Mishra, learned Advocate General, appearing for the respondent No^. 4 would submit that the instant petition appears to be premature and is not maintainable as the proceedings pending in the Court of law cannot be challenged under Article 226 of the Gonstitution of Ihdia by ignoring and b^assirig fhe ; prescribed procedure of law provided by other laws m force. He would further submit that the complainant is always at liberty to make allegations directly before the police ofKcer pr by submittmg a complaint to the Magistrate concemed against commission of any cognizable offence. The Magistrate directing investigation urider Sectiori 156(3) does nothave optiontQ enquire»into the cbrrectness ofthe aUegation, and therefore, initiation.of ;criminal proceedings cannot be held illegal or arbitrary and !/ fherefore is not at all an abuse of process oflaw. 8. .BefQre cDnsidering the rival submissions .of the learned • counsel for the parties, I consider it necessary to advert fo ^v:' ^h the relevant provisions of the Code of Criminal Procedure, 1973 whicK read thus:- \: J9k 156. PoUceofficer's power to investigate cognizable case.—(IjAnyofficerin charge of a police stationmay, withouf the order of a Magistrate, investigdte any cognizable case which a Court having jurisdictian over tHe local area within the lirrdts of such. station would have pou/er to in.quire into or try under the provisions of ChapterXm. (2) No proeeeding ofa police officerin any such case shall at any stage be catled in question on the ground that the case was one which such officer was not empowered under this section toinvestigate. (3) Any Magistrate empowered under Section 190 may 6rd.er suchan investigation as above mentioned. 173. Report of poUce offlcer on coinpletton of investtgation.—(1) Every investigation under this Chapter shall be completedwithout unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of ~the poV.cg station shall forward to a Magistrate empowered to take cognizance ofthe offence on a police report, a report in the form. prescribed by the State Govemment,stating^ ^ (a) the names ofthe parties; (b) the nature of the information; (cj the names of the persons who appear to be apquainted with the circumstances ofthecase; (d) whether any offence 'appears to have been comrrdtted and, if so, by whom; (e) whether the accused has been arrested; if) whether he has been released onhis bond and, ifso, whether withor without sureties; (g) whether he has been forwarded in custody under Section 170; . fii) The officer shall also communicate, in such manner as may be prescribed by the State Govemment, the action taken by him to the person, if any, by whom the information relating to'the commission of the offence was 'ftrstgwen. . (3) Where a superior officer of police has been appointed under Section 158, the report shall, in any casein which the State Govemment by general or special order so directs, be submitted through that officer, and ke may, 10 ^' ^^ pending the prders of the Magistrate, directthe officer in charge ofthepolice station tdmake further investigation. (4) Whenever it appears from. a report forwarded under this section that the accused has been released on his bond, the Magistrate skall make such order for the discharge ofsuch bond orotherwise as hethinksfit. (5) Whensuch reportis in respect ofacase to which Section 170 applies, the police qfficer shall forward to the Magistratealong withthe report— (a)^ all documents pr relevant extracts thereof on iuhich the prosecution proppses tp rely other Ihan those _ already sent 1.0 the Magisfrate during investigation;' the statements recqrded under^Section 161 of all the persons whom the prosecutwn proposes tb examine as its witnesses. (6) If the police officer is of opinion that any part of any sueh statementis not releuantto the subject-matter ofthe prpceedings or tkat its disclosure to the accused ts nat ^essential inthe interests ofjustice and is inexpedient in fhe public interest, he shall indic.ate that part of the Statement and append a note requesting the Magistrate to exclude thatpartfrom the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it epnvenient so to do, he may fumish to the accused copies ofall or any of the documents referred to in sub-section (5). : „: ..., •..•:,; (8) Nothing in this section shall be deemed to preclude further investigation inrespect ofan offence after a report under sub-section. (2) has been forwarded to fhe Magistrate and, where upon such investigation, the officer in charge of the police siation obtains further evidence, oral or docum.entary, he shallfonuard to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sectians (2) to (6) shall, as far asmay be, apply in relation to suchreport or reports as they apply in relation to a report forwarded under sub-section (2). 200. Exarm.nation of coinplainant.—AMagistrate taking cpgnizance of an offence on complaint shall exarrdne upon oaththe complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in vjriting, the Magistrate need not examine the complainant arid the witnesses— . , . : -i . (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makss over the case to another Magistrate under Sectipn 192 after exandning the complainant and the witnesses, the latter Magistrate need hot re-examine them. 201. Procedure by Mcigistrate not competent to take cqgnizci.nce of theccise.—If the complcdnt is made to a Magistrate who is not competeht to take cognizance ofthe offence, he skall,—- (a) ifthecomplaintisinwriting,retumitfor presentation to the proper Court with an endorsement to that effect; (b) ifthe complaint is not in writing,direct fhe complainant t6 the proper Court. 202. Postponentent of issue of process,—(l)Any Magistrate, on receipt of a complaint of an offence of which Ke is authorised td take cognizance or which has been made over tp him under Section 192,may, if he thinks fit, [and shall, in a case where the accused is residing at apldce beyond the area in whieh he exercises his jurisdiction] postpone the issue ofprocess against fhe accused, and either inquire into the case himselfor direet an investigation to be made by d police officer or by such other person as he thinks fit, for the purposeof deciding whether ornot there is sufficientgroundforproceeding: Provided that no such direction fof- investigation shall be made,— - (a) where it appears to the Magistrate that the offence complained ofis triable exclusively bythe Court ofSession; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present fif any) have been examined on oathunder Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if hethinks fit, take evidence ofwitnesses on oath: Provided that if it appears fo the Magistrdte that the offence complained of is triable exclusively by the Court of Session, he shaH call uponthe complainant to produce all his withesses andexamine them on oath. (3) If an investigation under sub-section (1) is mdde by a person not being a poliee officer, he shall have for that ,,«)S8EBfg^ /f^\ 12 fe':' ^^ investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." 9. A bare reading of the provisions contained in Section 156(3) and Section 200-202 of Cr.P.C. would reveal that chapter XII ofthe Code deals with information to the police and their powerS to investigation whereas Chapter XV which contains Section 202 deals with provisioris relating to steps which a Magistrate has to adopt while and after taking cognizance of an offence on a complaint and therefore, the provision.s of the above two Ghapters deal with two different facets together. 10. The Supreme Court in the case of Tula Ram andofhers— v- Kishore Singh reported in AIR 1977 SC 2401, laid down the fbllowing legalproposition in this regard inpara :14that:- "1. That a Magistrate can order investigation under Section 156(3) only cvt the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 arid 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is ' . .nat erititled in law to order any investigation under Section 156(3) thov.gh in cases not falling within the provisoto Section202 hecan orderan investigationby , the police which wpuld be in the nature ofanenquiry as contemplated by Section 202 ofthe Code. 2. Where a Magistrate chooses to take cognizance hecan adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proeeeding he can straightaway issue process to the accused but before he does so He rrw.st comply uritK the reguirements of Section 200 and record the evidence ofthe complainant or his witnesses. (b) The M.agistrate can postpone the issue of process and direct anenquiry by him.self. (c) The Magistrate can postpone the issue of process and direct an enquiry by any otker person or an investigationby thepolice. 13 3, Jn. case the Magistrate after considering the statement ofthe complaindnt and the witnesses or as a result ofthe investigation andthe enquiry ordered is not satisfied that there are sufficient grounds for proceeding He can dismiss the complaint. 4. Where a Magistrate orders investigation by the police before toking cognizance under Section 156(3) of the Code and reeeives thereport thereupon he can dct on the report and discharge the accused or straightatuay issue process again.st the accused or apply his mind to the complaint flled before him and take action under Section 190 as described above." J^ Supreme Court in the case of Devarapally Lakshniinarayana Reddy v. V. Narayana Reddy, reported in (1976) 3 SCC 252 in para 13 to 18 obseryed as under:- "13. Itis well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the /acte alleged in the complaint, disclose the commission of an offence. This is clear froTn the use ofthe wdrds "may take cognizance" whichin the context inwhich they occur cannot be equated with "must take cognizanee". The word rnay" gwes a discretion to the Magistrate in the rnatter. Ifonareading ofthe complaint he finds that the allegations therein disclose a cognizable offence andthe forwarding ofthe complaintto the pQlieeforinvestigation under Section 156(3) will be conducive tojustice and save the valuable time of the Magistrat? from being wasted in enquiring into a matter which was pnmarily •fhe duty of :the police to irwestigate, he will be justified in adopting that course as an altemative to taking coghizance ofthe offence, himself. 14. This raises the ihcidental question: What ismeant: by "taking cognizance of an offence" by a Magistrate withinthe contemplation of Section 190? This expression has not been defined in the Code. Butfromthe scheme of the Code, the content and rnarginal heading of Section 190 andthe caption ofCkapter XIV under which Sections 190 to 199 occur, itis clear that a case canbe saidto be instituted in a court only whenthe court takes cognizance ofthe offence alleged thereih. The ways in which such cognizance can be taken are set outiri clauses ^a), (b) and (c) of Sectmn 190(1). Whether the Magistrate has 6r has not taken cognizanee of the offence wiU-dependon the ctrcumstances of the particular case including the rnode 14 ^:' in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complai.nt, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance ofthe offence within the