It ought to be kept in mind that investigation can
commence if 'there is reason to suspect the commission of a
cognizable offence' (See section 157 of the Code). Investigation
itself is a process for collection of evidence, by which truth is
expected to be revealed. Commencement of investigation cannot be
taken as formation of a belief that the person named as an accused
in the First Information Report or the complaint, is guilty. It is not
necessary that the investigation would result only in filing of
chargesheet. If there would be no sufficient evidence to put a
person on trial in the opinion of the police officer conducting
investigation, then such officer would file an appropriate final
report. Therefore, anxiety felt by the learned Addl. Sessions Judge
about the necessity of further evidence at the stage of
commencement of investigation itself, was not really justified. It has
already been observed that the complaint/ application alleged
commission of cognizable offences. The allegations were not
patently absurd, and/or inherently improbable. The order of the
Magistrate directing the police to investigate into the matter was
therefore, proper and legal.
CRIMINAL APPELLATE JURISDICTION
M/s.Royal Palms (India) Pvt.Ltd
...
versus
The State of Maharashtra & Anr
...
CRIMINAL WRIT PETITION No.56 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CORAM : ABHAY M. THIPSAY, J.
Citation; 2014 ALL MR(cri) 611
DATED : 07/08/2013
Rule. By consent, Rule made returnable forthwith.
2 Respondents waive service.
3 1 By consent, heard finally forthwith.
4 The petitioner is a Company registered under the
Companies Act. It had filed a complaint through its authorized
representative, before the Metropolitan Magistrate, 26 th Court at
Borivali against the respondent no.2 herein, and some unknown
persons alleging commission of offences punishable under sections
408 IPC, 420 IPC, 465 IPC, 467 IPC, 468 IPC, 471 IPC read with
section 34 of the IPC. In the said complaint, the prayer that was
made, was for an order under section 156 (3) of the Code of
Criminal Procedure (for short 'the Code') i.e. for directing
investigation into the matter by the police. The learned Magistrate,
after perusing the said complaint and certain documents which
appear to have been brought to his notice, formed an opinion that a
prima facie case against the accused was made out, and that the
matter needed investigation. He therefore, passed an order
directing the police to investigate into the matter as contemplated
under section 156(3) of the Code, and to submit a report to him
within two months from the date of the said order which was
passed on 1 March 2011. It is not in dispute that pursuant to this
order, a First Information Report came to be registered by the Aarey
Police Station, Mumbai, and the respondent no.2 apprehending
arrest, approached Court of Sessions for grant of Anticipatory Bail
to him. It is also not in dispute that Anticipatory Bail was granted
to the respondent no.2 by the Court of Sessions.
5
The respondent no.2 had approached the Court of
Sessions by filing an application for revision on 4 March 2011. The
learned Addl.Sessions Judge at Dindoshi, Mumbai, by an order
dated 11 November 2011 allowed the said revision application by
setting aside the order dated 1 March 2011 passed by the
Magistrate. The learned Addl. Sessions Judge clarified that the
original complainant was at liberty to move the Magistrate by filing
a private complaint as defined in section 2(d) of the Code. The
learned Addl. Sessions Judge further directed the dismissal of the
complaint, as in his view, it did not satisfy the ingredients of a
complaint as defined in section 2(d) of the Code. The petitioner
being aggrieved by the order passed by the Court of Sessions in
revision, has approached this Court invoking its constitutional
jurisdiction.
I have heard Mr.Prasad Apte, learned counsel for the
petitioner and Mr.S.K. Mishra, learned counsel for respondent no.2.
7
I have also heard Mrs.G.P
. Mulekar, learned APP for the State.
A perusal of the complaint filed by the petitioner before
the Magistrate clearly brings out the nature of allegations levelled
against the respondent no.2 – accused no.1. As per the averments
made in the said complaint, the respondent no.2 was working as the
Project Engineer of the petitioner company, and was responsible
and authorized to procure building materials for the purposes of
the construction of buildings that were to be build by the petitioner
company. That, the petitioner company, on a letter from its
Assistant Chief Security Officer – one Mr.S. Shivkumar – learnt that
the petitioner had committed offences of Criminal breach of Trust
and cheating etc, and had misappropriated a sum of about Rs.52
lakhs and odd, belonging to the said company. The modusoperandi
adopted by the respondent no.2 is alleged to be preparing false,
fabricated and bogus bills and challans in respect of supply of
building materials like metals, sand, cement etc. The bills and
challans used to be submitted by the respondent no.2 without there
being any actual delivery of any building materials. It is also
alleged in the complaint that purchase orders were found to be
given to M/s.Chandravati Transport having its office at a particular
address on terms of 100% advance payment against the purchase
order, and that, advance payments were actually made by cheque to
M/s.Chandravati Transport. However, M/s.Chandravati Transport
did not supply the building materials as per the purchase order,
inspite of having received the payments. That, the said
M/s.Chandravati Transport was introduced by the respondent no.2
as a Company known to him, and the purchase orders were given to
the said M/s.Chandravati Transport at the instance of the
respondent no.2. The bills purporting to be issued by
M/s.Chandravati Transport were submitted by the respondent no.2.
Totally, a sum of more than Rs.58,00,000/ (Rupees Fifty Eight
Lakhs) was paid to M/s.Chandravati Transport between May 2010
to November 2010 without any supply of building materials, on the
basis of forged and bogus bills and challans. Though the delivery
challans were submitted by the respondent no.2, the record
maintained at the main security gate did not show any such
supplies made by, or on behalf of the said M/s.Chandravati
Transport. It is, therefore, alleged that the respondent no.2
prepared false and bogus bills and challans, and claimed the
amount without there being any actual supply of the building
materials. When this was revealed, attempt was made by the
petitioner company to trace the concern M/s.Chandravati Transport
at the given address, but it was found that no such concern existed
at the given address. On these facts, it is alleged that the
respondent no.2 had committed the aforesaid offences.
It is clear that there are averments in the complaint
which, if taken at face value, disclose commission of cognizable
offences by the respondent no.2. It is therefore not possible to hold
that it was not open for the learned Magistrate to order
investigation into the matter, as contemplated under section 156(3)
of the Code of Criminal Procedure.
9
The grounds on which the learned Addl. Sessions Judge
interfered with the order passed by the learned Magistrate in
revisional jurisdiction, are not sound or convincing. The learned
Addl. Sessions Judge was of the view that the complaint filed by the
petitioner was not a proper complaint, inasmuch as the prayer was
only for a direction or order under section 156(3) of the Code. He
was of the view that this was not in conformity with the definition
of a complaint given in section 2(d) of the Code. It is difficult to
agree with this view. Section 2(d) defines 'complaint' as under:
“complaint” means any allegation made
orally or in writing to a Magistrate, with
a view to his taking action under this
Code, that some person, whether known or
unknown, has committed an offence, but does
not include a police report.
(emphasis supplied)
Thus, the requirement of section 2(d) is only that (i) it should be an
allegation (ii) made orally or in writing (iii) to a Magistrate
(iv)with a view to his taking action under the Code, (v) that some
person whether known or unknown has committed an offence.
Now, the learned Addl. Sessions Judge has not indicated which
ingredient of a 'complaint' as defined in section 2(d) was missing in
the instant case. Certainly, passing of an order as contemplated
under section 156(3) of the Code would be 'an action under the
Code'. The phrase 'action under this Code' occurring in section 2(d)
cannot be read as 'action under Chapter XV of the Code'. Therefore,
the reasoning of the learned Addl. Sessions Judge in that regard,
cannot be accepted. However, the crucial issue was not whether the
complaint was proper and whether it fitted in the definition of a
complaint given in section 2(d) of the Code. Even assuming it was
not a complaint proper, and a mere application seeking a direction
from the Magistrate to the police to investigate into the matter, still,
such an application cannot be said to be illegal or not maintainable.
Thus, even if the learned Addl. Sessions Judge was of the erroneous
view that what was presented before the Magistrate was not a
complaint as defined in section 2(d), there was no basis for a belief
that an order under section 156(3) of the Code can be passed only
on such a complaint. Consequently, the order passed by the
Magistrate could not be termed as bad or illegal, even on the
reasoning that what was before the Magistrate, was not a
'complaint'.
10
The learned Addl. Sessions Judge also observed that
there was 'no sufficient material produced before the Magistrate for
enabling him to pass an order for investigation'. This view is also
not correct inasmuch as it was within the discretion of the
Magistrate to order investigation into the matter, once the
commission of a cognizable offence was disclosed from the
complaint. What and how much material should be before the
Magistrate before he feels satisfied about the necessity of ordering
investigation, cannot be laid down by any precise formulae. Really
speaking, at that stage, the Magistrate is mainly concerned with the
examination of the averments made in the complaint for
ascertaining whether any cognizable case is disclosed therefrom.
Subsection (3) of section 156 speaks of 'such an investigation', as
has been referred to in subsection (1) thereof. Certainly, if the
complaint/application would not disclose or allege commission of a
cognizable offence, it would neither be possible for the Magistrate
to order investigation under section 156(3) of the Code, nor would
it be open to the police to investigate into such a matter. However,
when the commission of a cognizable offence is alleged in the
complaint, no fault can be found in the order directing investigation
on the ground that there was 'no sufficient material before the
Magistrate'.
It ought to be kept in mind that investigation can
commence if 'there is reason to suspect the commission of a
cognizable offence' (See section 157 of the Code). Investigation
itself is a process for collection of evidence, by which truth is
expected to be revealed. Commencement of investigation cannot be
taken as formation of a belief that the person named as an accused
in the First Information Report or the complaint, is guilty. It is not
necessary that the investigation would result only in filing of
chargesheet. If there would be no sufficient evidence to put a
person on trial in the opinion of the police officer conducting
investigation, then such officer would file an appropriate final
report. Therefore, anxiety felt by the learned Addl. Sessions Judge
about the necessity of further evidence at the stage of
commencement of investigation itself, was not really justified. It has
already been observed that the complaint/ application alleged
commission of cognizable offences. The allegations were not
patently absurd, and/or inherently improbable. The order of the
Magistrate directing the police to investigate into the matter was
therefore, proper and legal. The revisional jurisdiction is meant to be exercised for
the purpose of correcting a manifest error of law resulting in
miscarriage of justice. Even if the learned Addl.Sessions Judge
himself would not have ordered investigation on the basis of the
complaint/application as was before the Magistrate, that was not a
sufficient justification for interfering with the discretionary order
passed by the Magistrate, in exercise of the revisional jurisdiction.
The learned Magistrate had exercised the jurisdiction vested in him
by law.
14
As such, the impugned order is contrary to law and
needs to be interfered with.
Since the respondent no.2 is already protected by grant
of Anticipatory Bail, there is no question of prejudice being caused
to him on account of the order directing investigation being revived.
As a matter of fact, it appears that pursuant to the order passed by
the Magistrate, First Information Report was registered and
investigation had already commenced. From this point of view also,
the learned Addl. Sessions Judge ought not to have interfered with
the investigation that had already commenced, without knowing
the nature, status and effect of the investigation that had been
carried out till then.
Petition succeeds.
17 Petition is allowed in terms of prayer clauses (a) and
Rule is made absolute accordingly.
(ABHAY M.THIPSAY,J)
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