IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1070 OF 2008. 1. Ashwin Bipin Mehta. 2. Mr. Govind S. Gupta. ..Applicants. versus 1. Miss Daisy B. Damania. 2. The State of Maharashtra. ..Respondents. .... Mr. A.P.Mundargi, i/b. Mr.Ranjit R. Bhonsale, for the Applicants. Ms. Daisy B. Damania, Respondent No.1 in person. Mr. J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th September 2008. : 25th September 2008. : 25th September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard the learned senior counsel appearing for the applicants and the first respondent appearing in person. The first respondent appearing in person is the original complainant who filed a complaint in the Court of learned Magistrate, alleging commission of various offences against the present applicants. 2. In the complaint, as originally filed, the offences alleged are under sections 120-B, 109, 114, 420 read with sections 465, 467, 468, 471, 474 read with section 34 of the Indian Penal Code and an order was passed on the said complaint by the learned Additional : 2 : Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, on 6th February 2003, directing that the complaint be sent to Colaba Police Station for investigation under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). Accordingly, the investigation was carried out and a report was submitted before the learned Magistrate by the Police Sub-Inspector claiming ‘B’ summary. An objection was raised by the first respondent to the said report. After hearing the objection of the first respondent, the learned Magistrate passed order dated 7th July 2004 directing that the complaint be sent back for re-investigation. 3. As per the said order, the investigation was carried out. On 18th February 2005, the concerned Investigating Officer submitted a report claiming ‘B’ summary. The first respondent was given notice of the said report and she submitted objections in writing. The learned Magistrate by order dated 7th July 2005 accepted the report and granted ‘B’ summary. The said order was challenged by the first respondent by filing a revision application under section 397 of the said Code before the Sessions Court. By order dated 4th September 2007, the learned Additional Sessions Judge allowed the : 3 : revision application and passed the following order :- "Revision application is allowed. The impugned order dated 7.7.2005 granting "B" summary for prosecution of applicant is hereby set aside. The complaint CC No.37/Misc./2004 is revived with directions to Learned Magistrate to consider entire material on record then pass necessary order according to law. If the complainant prays for adducing further material the same be also allowed. The Learned Magistrate may also consider directions for further investigation if he deems just and expedient in the circumstances of the case. Complainant to appear before Learned Magistrate on 1.10.2007. Application is accordingly disposed off." : 4 : By this application under section 482 of the said Code, the applicants have taken exception to the said order of the Sessions Court. 4. The learned senior counsel appearing for the applicants has taken me through the order dated 4th September 2007. He pointed out that the report which was accepted by the learned Magistrate was the second report submitted after carrying out a fresh investigation. His submission is that there were various options open before the learned Magistrate including an option of directing the first respondent to lead evidence. He submitted that notwithstanding a claim made by the ‘B’ summary, in a given case, the learned Magistrate can examine the material produced during the investigation and take cognizance of the offence. He pointed out that by the impugned order, the learned Additional Sessions Judge has directed that the learned Magistrate may consider of issuing directions for further investigation. He submitted that such a direction was uncalled for. Inviting my attention to certain observations made by the learned Additional Sessions Judge, he submitted that in the complaint filed : 5 : by the first respondent, there is not even an allegation of commission of offence of a criminal breach of trust. He submitted that the learned Additional Sessions Judge has found fault with the order of the learned Magistrate as well as with the investigation on the ground that the case of commission of offences of criminal breach of trust and criminal mis-appropriation has gone unnoticed with the Investigating Officer and the learned Magistrate. He submitted that there is a separate private complaint filed by the first respondent alleging commission of offence of criminal breach of trust on which process has been issued. He stated that a revision application filed by the applicants against the said order of issue of process is pending before the Sessions Court. 5. When this application was heard yesterday, it was noticed that the affidavit filed by the Investigating Officer in this Court refers to the further order passed by the learned Magistrate on 2nd February 2008 by which the learned Magistrate directed that the complaint should be sent for further investigation to the Investigating Officer or Senior Police Inspector in view of the detailed order passed by the Sessions Court. Today, a copy of the said order has : 6 : been produced before the Court by the first respondent as well as the learned APP. 6. The learned senior counsel appearing for the applicants submitted that the further investigation has been ordered by order 2nd February 2008 in the light of the impugned order passed by the Sessions Court and therefore, now the investigation will not be confined to the complaint. He submitted that now investigation will be carried out as regards the alleged offence of criminal breach of trust which is subject matter of a different complaint filed by the first respondent. His grievance is that from 2003 onwards the applicants have been subjected to the investigation by a third officer for the same alleged offences. He submitted that the impugned order is perverse and requires interference at the hands of this Court. 7. The first respondent appearing in person submitted that by the impugned order dated 4th September 2007 cognizance of the offence has not been taken and therefore, the applicants have no locus to challenge the said order. She submitted that by the impugned order, the complaint has been sent back to the learned Magistrate for reconsideration and the applicants are in : 7 : no way prejudiced or affected by the said order. Reliance is placed by the first respondent appearing in person on a decision of this Court in the case of Dr.(Smt.) Annapurna Nayak v/s Gyan Chand Varshey (Gupta) & Anr.[ 2008 All.M.R.(Cri.) 477 ] and submitted that the applicants cannot be allowed to interfere with the process of investigation. She submitted that there is a suppression of the material facts by these applicants in this application and contradictory stands have been taken. She submitted that the impugned order of the Sessions Court has been already implemented by the Magistrate by passing an order dated 2nd February 2008 and the complaint has been already sent for further investigation. She submitted that the said order dated 2nd February 2008 has not been challenged by the applicants and no interference is called for. 8. There is an affidavit filed by one Shri Yunus Ismail Shaikh, Assistant Inspector of Police, Economic Offence Wing, Unit III, Crime Branch, C.B.C.I.D, Mumbai. In the said affidavit, the said Officer has disclosed that on the basis of the order passed on 2nd February 2008 by the learned Magistrate, the investigation has been entrusted to him by the Deputy Commissioner of Police. He has set out in the affidavit that some steps : 8 : have been taken by him in the investigation. He stated that he took some steps, but on 2nd May 2008, he was communicated the interim relief granted by this Court. 9. I have carefully considered the submissions. It is true that when ‘B’ summary was claimed by the Investigating Officer, the learned Magistrate had various options available in accordance with the provisions of the said Code. It is true that he could have taken cognizance of the offence or he could have directed the first respondent to lead evidence and ordering the further investigation was not the only option available to the learned Magistrate. The learned Magistrate however accepted the ‘B’ summary. The order of the Sessions Court dated 4th September 2007 is already quoted above. On plain reading of the said order, it is apparent that the learned Additional Sessions Judge has not directed the learned Magistrate to take cognizance of the offence. All that is done by the learned Additional Sessions Judge is that he issued a direction to the learned Magistrate to reconsider entire material on record produced by the Investigating Officer as well as the first respondent and thereafter to pass necessary order in accordance with the law. It is observed that the learned Magistrate may consider of : 9 : directing further investigation if he deems just and expedient. On plain reading of the said order of the learned Additional Sessions Judge, it is obvious that the said order does not affect the rights of the applicants. Now, on the basis of the said order, a further direction has been issued by the learned Magistrate on 2nd February 2008 directing that the complaint shall be sent for further investigation. There may be some merit in the factual contention raised by the applicants that they were not aware of the said order. But fact remains that the present application has been filed after the order dated 2nd February 2008 was passed by the learned Magistrate. The present application was filed on 5th April 2008. 10. Thus, the impugned order dated 4th September 2007 has been now acted upon by the learned Magistrate by passing an order directing the further investigation. It is true that the applicants will have to face further investigation. But there is no prejudice to them as neither the learned Magistrate nor the learned Additional Sessions Judge have taken cognizance of the alleged offences. Till the cognizance is not taken, the applicants do not come into picture. : 10 : 11. A grievance was made by the senior counsel appearing for the applicants that in view of the operative part of the order dated 2nd February 2008 passed by the learned Magistrate, now the investigation will be carried out even for the offence of criminal breach of trust which is subject matter of a separate complaint filed by the first respondent in which process has been issued. There is no merit in the said contention. The learned Magistrate has directed the further investigation on the basis of the complaint. In what manner investigation should be carried out by the concerned officer is something with which this Court cannot interfere. 12. Therefore, at this stage, no interference at the instance of the applicants is warranted. It must be stated here that as the entire matter is at investigation stage, this Court is not at all considered the question whether a case for proceeding against the applicants for any offence is made out or not. All contentions which are raised by the applicants on the merits of the averments made in the complaint will naturally remain open to the applicants to be agitated at appropriate stage in appropriate proceedings. : 11 : 13. Subject to what is stated above, there is no merit in the application and the same is rejected. There will be no orders as to costs. [ A.S.OKA, J.]