ANALYST

LAW ASSOCIATES

Vijay Kr. Aggarwal A 12 Naraina Vihar New Delhi 110028

(Advocate) Chamber No. 251, Patiala House, New Delhi-1

“2 LIST OF JUDGEMENTS ON 156(3) Cr.P.C.”

S.NO. TITLE CITITION REMARKS PAGE NO.

1 RAJESH BAJAJ VS N C T OF 1999 CRL. L.J 1833 SPLITTING UP 1-4
DELHI (S.C) THE TWO
DEFINITIONS IN
TO THE
DIFFERENT
COMPONENTS
OF THE
OFFENCE TO
MAKE A
METICULOUS
SCRUNITY
WHETHER ALL
THE
INGREDIENTS
HAVE BEEN
PRECISELY
SPELLED OUT IN
THE
COMPLAINT IS
NOT NEEDED AT
THE STAGE OF
INVESTIGATION

2 VIJAY PRAKASH VS STATE 2000 CRL. L.J 5-6

OF U.P. 4157(ALB.)
3 BHOLA NATH ARORA VS 1982 CRL. L.J. 1482 7-13
THE STATE (DEL)
4 BISHWANATH 1976 CRL. L.J. 1901 14-19
AGGARWALLA & ORS. VS (CAL.)
THE STATE
5 RAJAT MITTAL VS STATE & 2001(III) A. D (CR.) 20-22
ANRS. DHC 144
6 SURESH CHAND JAIN VS 2001(I) A.D (CR.) S.C 23-29
STATE OF MP 34 (S.C)
7 RAM BABU GUPTA & ANR 2001 CRL. L.J. 3363 30-40
VS ST. OF U.P & ANR (ALB)
8 S.P SHARMA VS N. C. T, 2001 CRL. L.J. 3363 41-43
DELHI & ORS. (ALB)
9 STATE. OF HARYANA VS CH. 1991(1) C.L.R. 619 44-44
BHAJJAN LAL & ORS (S.C)
10 SURINDER SINGH SOBTI VS 1999(1) J. C. C.107 45-45
THE STATE & ORS (S.C)
11 MOHINDRO VS. STATE OF 1999(1) J. C. C.107 46-46
PUNJAB AND OTHERS (S.C)
12 M/S.MEDCHL CHEMICALS 2000 CRL. L.J.1487 47-54
VS. BIOLOGICA E.LTD (S.C)
CrLL. J. 1999 Rajesh Bajaj y. State NCT of Delhi -1833
tt' is defined not but be said to have made the document .~ection
c<:mtaiQed in the impugned judgment of
'ode to mean fraudulently; thereby· attra~ting Section 466 of the High Court. This appeal is accordingly al-
;e document the Indian Penal Code. ,Jn the case of Mahesh lowed.
1akes, signs, Chandra Prasad v. Emperor, AIR 1943 Patna 393, Appeal allowed.
rt of a docu- a Be11~h of Patna t(i~ Co,~ti, e~served : .
f the Courts "To tamper with tlrereQt>t:d of a:proc~ding in
jid wrife the a.Court of justice in q,nler to oqt<ill.t from that 1999 CRI. L. J. 1833
even though Court a decision or otqyr Vt'WCh it. otherwise (SUPREME COURT)
ailcihier: the would not make, is to my; ®net; a~ •Qluch a pub- (From: 1998 (3) Chand Cri C 238 (Delhi))
accuse<f-re- lic mischief as to attempt to st:ture the unauthor-
!S a resuJt'of
K. T. THOMAS AND SYED SHAH MO-
ised release <?~ a jJiis.oner ffow,,J~l Q~ i ~o qbtain HAMMED QUADI,U, JJ.
!aSOO on bml
ly. The ques- f?r~ unq~~l~l~~q Jre.S~OJt:.c,·, :,~tJr~fim~g . :i Criminal Appeal No. ~95 of 1999 (@ SLP
him: to, prac.tt~ ~.a Sl-lf&eP.:O w-.,, .,tgate:a sliw.
uch ciroo'th- :~~see n,Qteason wfiy ihe.~'I(P,tessi&p ~with in- JCriJNo. 3.0~3 of 1998), D/- 12-3-1999.
;ed-resp<tnd,..
shon,estly or
~nttQ 9e(iat;td'. as 'it pecrir~
... -~··-· ....... 1 •'. . • J. ·• ., ~1 ,._
w~~tiQn 2~. ofthe
.• .. '·' ... ..-! .· ·. . ;,.., .. '· .( ~ ..f;..- •·
Rajesh Bajaj,Appellant v. State NCT of Delhi
ami' others; Respondents.
1;> · 'C¢e,.$J:ipVld,~piorettattf?*'lY. c.<>~~~d
gful:1 ~$..ey. · ·co~ ill ltidl~ ih · ·iihasJ~e·· ·~ ... · ~d ' (A) Crliirinal P. C. (2 of 1974), S. 482 .;.J....
lly~~~ng ~ 'C<5iift$':q{ ' .. ' "'~ 'r . .~·_io'~1~~n Quasbirig of FIR --... Ground that complmnt
•rds' ..
. 8~l.Wlg w~· ·;in·an'~@te''. ··!rft ~~,'~~~do . did not WsCI~ offence·..i... Validity - Com-
need o,ot be
tb tlie aetual d~~d~a~t~t)e~~~~•o;:;; .. ,·~·:·~· ::' , pjaint allegbig, offence of cheatbig ~ C&m-
'bl~~t ri().t. re~uited to reproduce verba~

I
• <>rtlie'ihat- Q3~. . ·tJ.~.·nuy~~g~3.·. y.:n!SM,~
. -.,.:ti.9~~ .•M>·6 <md
468.>of the. k\Qi~,p~:i~~t;~(held to ·,Mt··~ientfof offence alleged in ~l~f
•e do'cufti~'nt ''&Iitplamt ·~ '1\verlnentS; m Cd•plailtt ·ptiiiia
Cotut' cif jus- .~~" ~D·Pl:CJ.V~ ~J'Qfl(,i ~AA~blftp~bt.
.'r.~le~rmaking out case ·:ror inv~t~itlin u_
lpers~nwho 4~- In this view·.of'the matter. w.e·ullhesitat-
QU:ash~ng of FlR; not proper. ·
could .be re- irtgly reject the cont.enti.On·,taised.,by Mr.
- Upadhyay, appearing fot the.respdr1dent·and hold 1998;(3) Chand Cri C 238, Reversed.
>r injui.Y: has
td, therefore, that .th~. accused~respon(lent ,co~:.the of- .Penal Code (45 of 1860), S. 415.
·'' '.· . , . •,!.· .. •

rcums~ces fence under Sections'466:atid?~:af-tlle Indian It is not necessary· that a complainant shoUld
such ,iofg&i Fenal Code.:we:,.therd0tt!,,set,.~!Jle.orderiaf verbatim .reproduce in the body af his complaint
,ffimitted 'of- · acquittal, pas~d by tlierlH~h (i~ofAllahabad all the ingredients of the offence pe is alleging.
1 Penai co<Je. and•i:(m:vict>'lhe acoused-'respotitletit under Sec- Nor is it,necessary that the complainant should
~ver(~~li()n"' tions 466 and 46~'the IndianiPenal ·<£:-ode but stl:j,~ in ~o rna,ny ~ords that tQ~ ~lltention of ~e
ment OfJ?~ · since·the.incidtrttitself1was oftlieyearl971 and • a<;cused :was dishoQest. or fratidMlt>!nt: _Sp~itfing
m~<Je it'f~~ .·more thart 21:,yearH1a.ve etaps6d irnhe: mean- ' up of the' definition into different c<>mp(;Q~nls of
bing fraudu- time1m<hheYlecarriect ScmsfomrJudge:himself had the offeiiCe to make a'ineticutdU~ sdutiny,
rit to defraud granted the benefit of Section 4 oftheU~ P: First whethet all the ingredients ha~ ~ precise!~
'defraud')n~ Offenders ProbationAct and there is no bad an- spelled out in the complaint, ·is' nov:the: need al
it and injury . tecedents, we also .affirmJhe o.rder of learned the stage 'Of investigation .. I~ factual foun~tioJ
lething other Additional Sessions Judge and.direct that the for the offence has been lrud m thecomplrunt thJ
de any harm respQndent should execute a personal bond of Court should not hasten to quash criminal pro-
body, mind, Rs. 2000/- with one surety of the like·amount for ceedings during investigation stage merely on ~e
'it or advan- keeping peace and good be~viQur for a period premise that one or two ingredients have not been
ys cause loss of two years. !· stated with details. For quashing-an FIR (a setp
, therefore, a 5. We also fail to understand how the High which is ~rmitted only in extremely rare cases)
!ntion to de- Court, while deciding a Criminal Revision can .the.informationin the complaint must be so.be·
advantage is direc.t that the.accused mustbe.deemed to have .reft of j'fVen the basic facts whlcb aie absolute!)
judged from been in continuous service without break and, necessary for making out the offence.
a forged bail therefore, he should~ paid his full pay and D. 1998 (3) Chand Cri C 238, Reversed.
: person con- .· A during the period of his suspension. This di- (Para 9;

-
!ing released recti on and-.observation is. wholly without juris-
at large can- diction and we, accordingly quash the said di- CQ/CQ/S.l 00095/99/BSS/CSL. ~-
·-.

'K?u r L. .&SWMS:if"'i~----
1834 Rajesh Bajaj v. State NCT of Delhi Cri. L. J.

(B) Penal Code (45 of 1860), S. 415 - be exercised sparingly and with circumspection"
Cheating - Complaint regarding - Facts for quashing criminal proceedings. Nevertheless
narrated in complaint revealing commercial learned Judges found that the case on hand could
transaction- No ground for holding that of- not pass the test laid down by this Court in State
fence of cheating would elude from such trans- of Haryana v. Bhajan Lal, 1992 Suppl (l) SCC
action - Crux is intention of accused person. 335 : (1992-AIR ~CW 237). The appellant is ob-
1998 (3) Chand Cri C 238, Reversed. viously aggrieved by·the aforesaid course ofac-
tion adopted by the High Court and hence he filed
It may be that the facts narrated in the present
the special leave petition.
complaint would as well reveal a commercial
transaction or money transaction. But that is ~· In the complaint ·filed by the appellant
hardly a reason for holding that the offence of before the police,on the strengtll of which the
; cheating would elude from such a transaction. FI~' Was p'tepared, th1ffolio-Mng averments, f.n-
' In fact, many a cheatings were committed in the ter alia, were made. Appellant belongs tb a c'Oin-
course of commercial and also money transac- pany (Mis. F~s~ion Apparel Private Limited)
: 1 tions. The crux of the postulate is the intention which manuf~ctu'nbs ~d e~p,~i:t~ -~~~~t~aBe
' 1 of the person whQ induces the victim of his rep- garments. On 1'5'-11~1994 fifth resportaeilt
;_, resentation and not the nature of the transaction (Gagan Kish6re·stivastimt) _ Managirig Diiet(Qr
which would become deci~i~e in disce;ning of M/s. Avren:' ,
Junge'Mode
', I" . .
Gunibh
,. . .
H:aus
.. , , ..
Der
.
· .whether there was commission of offence or not. Model approached the complainant fot purchase
case
The complcrinant in the instant has s~ in of Readymade garments of variml'S 'kinds 1itld
the ,body of the complaint that be was ind~P'e4io induced the appellant to believe that 5th respond-
beli~ve that respondent would.honour:payui~nt ent.. would pay the price of the said goods on re-
on receipt of invoices, and that the cq~plainant ceiving~the 'invoice. Such payment was prom-
realised later that the intentions of the respond- ised to be made within fifteen days from the date
ent were not clear. He also mentioned. that re- of invoice of the goods which complainant would
spondent after receiving the goods have sold desp~tch to Germany. Appellant believed the
. ' them to others arid still he did not pay the money. aforesaid representation as true and on that be-
\ _- Such averments would prima facie make out a lief he despatched-g()9ds:worth4.46;5QJ.25 D.J\1. .
\ \ case. for investigation by the authorities; (Deutsch·Marks).ln March/April~1995 respond-
ent Oii receipt.of 3_7 different invoices. got the
\ 1998 (3) Chand Cri C 238, Reversed.
l (Paras 10, 11, 12) goods released and sold them to others . .Bu.trthe
respondent paid only a sum of l,15,194D.t4.
/tases Referred : Chronological Paras Appellant further alleged in the complaint-that
.J~992:AIR S~ 237: ~92 Supp (l),SCC ~35: respondent induced hint to -believe that he is a
1992 Cri LJ 527: Affi 1992 SC 664 . 2, 9 genuine dealer, but actqally his intentiens were
R. K. Jain, Sr. Advocate, Aseem Mehrotra, A. not clear.
P. Medh, Advocates with him, for Appellant; K. 4. Appellant also mentioned in the com-
N. Rawal, Addl. Solicitor General, Anil Katiyar, plaint that one of the representatives of appel-
S. W.- A. Quadri, Ms. Sushma Suri, Advocates lant's company went to Germany in October,
with hlm (for Nos. I and 2) and Arun Jaitley, 1995 for realising the amount on the strength of
A.K. Sinha, Neeraj Choudhary, Advocates (for an understanding reached between them that re-
No.5), for Respondents. spondent would pay 2,00,000 D.M. in lieu of the
THOMAS, J. :-Leave granted. remaining part of the price. However, the re-
2. Appellant lodged' an FIR with the police spondent did not honour even that subsequent
.. for the offence under Section 420, Indian Penal understanding .
A Division Bench of the Delhi High Court 5. Appellant further mentioned in the com-
-~;:(lUashed the FIR on the premise that the com- plaint that he came to know later about the modus
did not disclose the offence, The Division operandi which respondent adopted in regard to
reminded themselves that jurisdiction certain other manufacturers who too were duped
Article 226 of the Constitutionor Section by the respondent to the tune of rupees ten crores.
of the Code of Criminal Procedure "shouid 6. Learned Judges of the High Court have
._...,.,. -_:··

Cri. L. J. '
i 1999 Rajesh Bajaj v, State NCT of~ 1835
:umspection"
Nevertheless I put forward three premises for quashing the FIR.
First is that the complaint did not disclose com-
not hasten to quash criminal proceedings during
investigation stage merely on the premise that
nhandcould I mission of any offence of cheating punishable one or two ingredients have not been stated with
~ourt in State -~ under Section 420 of the Indian Penal Code. Sec- details. For quashing an FIR (a step which is per-
ppi (I) sec ' ond is that there is nothing in the complaint to mitted only in extremely rare cases) the infor-
>ellant is ob- suggest that: the petitioner had dishonest, or mation in the complaint must be so bereft of even
:ourse of ac- fraudulent intention at the time the respondent the basic~-facts which are absolutely necessary
ence he filed · exported goods worth 4,46,597.25 D.M. by 37 for making out the offence. In State of Haryana
different invoices. There is also nothing to indi-. v. Bhajan Lal ( 1992 AIR SCW 237) (supra) this
te appellant cate that the respondent, by:deceiving the com- Court laid down the premise on which the FIR
f which the . plainant, induced him to :export goods wo,;th can ,be quashed in rare cases. The followin_,g o})-
mnents, in- 4,48,597.25 OM, (sic) The third is that on the ~rvations made in the aforesaid decisions are a
~s to acoin- face of the allegations contained in the complaint ~ound reminder (para 109 of AIR) :
:e Limited) "itis purely a commercial transaction wbich in a "We also give a note of caution to the effect
teadymade nutshell isihat,the seller dic:tnot~pay the balance that the power of quashing a criminal proceed-
espondeitt ainoi!nt of the goOds receiVed by him as per his ing should ~ exercised very sparingly an(!l with
tg Director .8§~\lfan~!~ ·;. ',~,:. . ·: ..... '"' . .. circumspection and that too in the rar~t of rare
Haus Der .'· "'/. _ After quotilig Sectitin 416 Uf IPC learned cases; thai the Court will not be justified•iJ,l ern-
>rpurchase -Judges-ptoceededto coqsider:dle·nmin elements barking llpon an enquiry as to the reliability or
kinds and of the offeneem•the-foHowingllines: ,If,,,, genuineness or otherwise of the allegations made
hrespond- ··A. bite reading'()£ the (iijfit\ition of bheartng in the FIR or the complaint and that the extraor-
10ds on re~ would' s~gest thatli£Here· are'two· elem~nls dinary or inherent powers do not confer an arbi-
~as prom- trary jurisdiction on the Court to act according
1:1\ereof,·li~y. deCeption jtnd dishonest inttsn-
m the date tiori. :to·:d<N~r'q~t'to'ad somethingdn ·order·io to its whim o,rcaprice."
tantwould 'bring a case'wttfuiHhe frrstpart ofSectibn 415, 10. It may be that the facts narrated in the
lieved the it is esserttiaJ,, in the' first pl~,Jfuat the person, present complaint would as well reveal a com-
,n that be- who de live~ fi!e property sbotilifhave' been·de- mercial transaction or money transaction. But
7.25D.M. . cefVtd ~~ he trtakek the· deitvery; ;aiuHn• die that is hardly a reason for holding that the of._
>respond- seco'tid. plrtce:ttlat He' slidold haVe· bee'ii- irtdttced fence of cheating would elude from such a trans~
!S got the lodo sofra.uddletitly or dishdne8tly. Where· prop- action. In fact, many a cheatings were commit-
s. But the erty is fraud~ntly or"dishonefl'tly obtained,~­ ted in the course of commercial and also rnoney
194 D.M. tibn'415 would bring the ~aid Act within the transactions. One of the illustrations set out un~
'laint that ·t-
:;ambit of cheatin&9rovided the. property is to be d~~~Section 415 of the Indian, Penal Code (Illus-
:ttheisa obtained by deeeption." tnitions 'f') iswoithy of notice now :
ens were
8. It was thereafter that the High Court "(f) A intentionally deceives Z into (1. belief
scanned the col:nplaint and found out that "there that A means to repay any money thafZ may,
he com- is nothing in the complaint to suggest that the lend to hlin and thereby dishonestly induces Z to
>f appel-- accused had dishonest or fraudulent intention at lell~ him money. A not intending to repay· it; Pi
October, the time of export of goods." cheats." ·
·ength of
1 that re-
9. It is not necessary that a complainant U. The crux of the postulate is the iritei1
should verbatim reproduce in the body of his tion of the person who induces the victim of hi
euofthe
complaint all the ingredients of the offence he is representation and not the nature of thY. transa
. the re-
alleging. Nor is it neeessary that the complain- tion which would become decisive in discerni!
tsequent
ant should -state in so many words that the inten- whether there was commission of offence or n
tion of the accused was dishonest or fraudulent. The complainant has stated in the body of;
1e com- Splitting up of the definition into different com- complaint that he was induced to believe f ·
!modus ponents of the offence to make a meticulous scru- ~esp~ndent would honour pa~me,~t on ~i~\
!gard to tiny,.whether all the ingredients have been pre- mvotces, and that the complamailt~~l;' i
eduped cisely spelled out in qte eomplaint, is not the need that the intentions of the resp<)n·j:~ · j
tcrores. at this stage. If factual foundation for the offence clear. He also mentioned thaf resfK)naent · \
rt have has been laid in the complaint the Court should re..ceiving the goods have sold them to others· .
\
1836 Nirmal Singh v: State of Haryaria Cri. L. J.

1 !still he d~d not ~ay the money. Such averments brother was armed with dagger. They gave suc-
would pnma faCie make out a case for investiga- cessive blows to all family members and caused
tion by the authorities. their death. The victim and her husband who were
· . 12. The High Court seems to have adopted sleeping on the roof top have witnessed the en-
a strictly hypertechnicai'approach and sieved'the tire inCident but could not raise any alarm•being
complaint through a cullendar of finest gauZes terrified on scrutiny of evidence of eye-witnesses
for testing the ingredients under Sectiori'415, IPC. nothing was found in their cross-b.~amination for
Stich an endeavour may be justified during trial, which 'either their presence can be doubted or
but certainly not during the stage of iitvestiga- their evidence can be impeached in any manrier.
~on. At any rate, it is too premature a stage for Both the witnesses, have given a vivid account
the lligh Court to step in and stall the investiga- of the entire incident which they·had seen• from
tion by declaring that it is a commercial transac- ' die roof top. Thus the evidence '-<>f the eye-wit-
tion simpliciter wherein no sembhmce oH:tiffii- nesses ·.could 'not' be di.~carded by Court on basis
rial offence is involved. :of lilleged infirmitie~~ Thus the conviction of
·main acc'Used under S. 302/34 was: proper.
. 13. The appe~lant ·is, therefore; right in ··.r~ l''i" , · (Para 5)
contending that tlie FIR shoutd not·have been
qt,Iashed in this case and the inv~stigation should oJ) Penal COde (45 of1860), S. 302 Lii Death
have been allowed t6 proceed. ··· ',, · senteilce......:.Ralftistofrare case;...:...Accusedcon-
'ri~ted
earlier.,for 'rape --'- Accused with his
. . 14. We, therefore. allow this ap~~f itiid
set aside the impugned order. . brother attacked •family members of victim
. ' q3used cleatl\~~fi~~.~tsons:bY giving bru-
Appeal allowed. .t.al ap,d merdless axe.u!ows- His act i§ ap act
i()fJl 4ep.-aved mind ap~(l.~ of m~~,brut;al~d
1999 CRI. L. J. 1836 ..:•()liSJn natpre--- Qi~ot ~P.t ~e heJ.d .0. be
~~t:o~.,rare ca$~ for awardbj.g extreme pen-
(SUPREME CO{JRT)
;aJtY:~! d~Ut;sentence- However, his brother,
(From: 1999 Cri LJ 662 (Punj and Har)) ~QQ,.1l~~~ulted•only,,one tperson only af-
G; B. PATTANAIKAND M. B.,SHAH, JJ. , te~; h~~~!\~e- her
3. to.~ blows - ~a$e of, ~o-ac­
Criminal Appeal No. 46 of 1999, D/-18-3- AiUSieli~.not be:sai(l. to~ ~t of rar.e case
1999. r:r-: S~·~e ~f;Peath imposed. on hi~ «=PIIl-
Nirmal Singh and another, Appellants v. State mJJ.tecl mw
iQ~prisomnent for.Jjfe.

of Haryana, Respondent. · (Para 6)

· R. S;JCh~tna\; Sr. Adwcate,. Ms. Kawaljit
(A) Penal Code (45 of 1860), S. 30Q -
Multiple murders - Ace~ convictec'l ear- Kochar, Naresh Shekhawat; D. ·P. Singh; J\ D.
lier for rape -=Attacked and caUSed death of J~n, AdV;QCates with him, for Appellants; Prem
five persons who were family ·members of vic- Malhotra and Ajay Siwatch, Advocates, for Re-
sp<mdents. .
tim by giving axe blows - Evidence of eye-
witnesses, a victim and her husband......:. Fdund G. B~ PATTANAIK, J. :-- .The two
reliable- Conviction of accused, was proper. appellants Ninnal and his brother Dharampal,
The accused was charged in earlier caSe for being aggrieved by the judgment of the Punjab
rape. I~ the said proceeding he had given a threat .and Haryana High Co\U1 in murder Reference
that if anybody gives evidence 'in the proceeding No. 4 have approached this Court. The High
then he will not be spared. Notwithstandlng the Court has affmned the death sentence awarded
aforesaid threat the victim deposed in the Col,lrt against them by the learned Sessions Judge,
and ultimately he was convicted. Accused'pre- Shahpur for the brutal mu~;der they committed
ferred appeal against conviction. While'he\vas by murd,ering the entire family of the deceased
released on bail during pendency of appeal, he Tale Ram. The prosecution case in nutshell is,
attacked the family members of the victim in that Tale had· three daughters-Punam alias
earlier case. He was armed with axe and his Bimla, Ninnala and Neelam and two sons named
Tinue and Parveen. Wife of Tale Ram was Smt.
CQ/DQ/S 100 113/99NNP/CSL Krishna. Dharampal and Nirmal are distantly
. L. J. 2000 Vijay Prakash v. State of Uttar Pradesh 4157
:he r....:vi- representation dated 10-1-2000 forwarded gal. We draw support from that judgment
musl be by the Superintendent, Central Jail No. 2 also. As petitioner is found entitled to suc-
efore the Tihar, New Delhi through his letter dated ceed on first ground it does not appear nec-
! consid- 10-1-2000, was received by the State Gov- essary for us to consider other submission
fthe rep- ernment in concerned section on 18-1-2000. made by the learned counsel for the peti-
:ndent of Another representation dated 11-l-2000, tioner.
•rt. expe- forwarded by Superintendent, Central Jail,
age. We, 22. For the reasons stated above, this
No. 2 Tihar, New Delhi through his sepa- writ petition is allowed. As the continued de-
:-impera- rate letter dated 11-1-2000, was received in
sive. The tention of the petitioner has been found il-
concerned section of the State Government legal, respondents are directed to set the
e so un- on 25-1-2000. Date 13-1-2000 was fixed as petitioner at liberty forthwith, if his deten-
depend- the date of hearing before the Advisory tion is not required in any other case.
from us-_ Board. Since the Advisory Board had already
:he case. cc;mcluded hearing of the petitioner's case Petition allowed.
adetenu on date 13-1-2000, the petitioner's repre-
efore the sentations were not forwarded to the Advi-
impossi- sOry Board.~ 2000 CRI. L. J. 4157
!r to con- (ALLAHABAD HIGH COURT)
21. Thus, it is admitted position that
din time S. R. SINGH AND R. K. DASH, JJ.
epresen- representation of petitioner was not for-
warded to the Advisory Board on the gr!)und Vijay Prakash and another, Petitioners v.
o shortly State of Uttar Pradesh and others, Respond-
that hearing of Advisory Board had already
:>the ref- ents.
concluded on 13-1-2000. However, it may
y cannot be noted that Advisory Board gave its opin- Cri. Misc. Writ Petn. No. 2372 of 2000,
than but
Ion on 28-1-2000 as is clear from para 6 of D/- 16-5-2000.
l without
the counter affidavit filed by Shri R.A. Khan. Penal Code (45 of 1860), S. 420 -
ch situa-
Hon'ble Supreme Court has held in the case Cheating - What constitutes - Allega-
ure from of Frances Coralie Mullin (supra) that the
ance can tions in complaint that complainant was
representation must be forwarded to the induced to supply plywood and other
No allow-
Advisory Board before the Board makes its materials on inducement of accused that
crastina-
report. There is no doubt that first repre- they would pay price within three days .
be made
legal in- sentation of the petitioner was received by but no payment was made within stipu-
s are in- the appropriate Government on 18-1-2000 lated period - Said averments consti-
:-te neces- i.e. 10 days before and second representa- tutes offence of cheating - FIR cannot
the time- tion was received on 25-1-2000 i.e. 3 days be quashed on ground that no offence
hority.~
... before the opinion was given by the Advi- was made out .
sory Board. In these circumstances, the
:xpressed State Government had sufficient time and Constitution of India, Art. 226.
:lear that was under obligation to forward the repre- (Para 4)
)etitioner sentations of the petitioner to the Advisory Cases Referred : Chronological Paras
·tate Gov- Board for its consideration. The represen- M/s. Medchel Chemicals and Pharma Pvt.
Advisory tation could not be withheld from being Ltd. v. M/s. Biological E. Ltd., AIR 2000
.·epresen- placed before the Advisory Board on the SC 1869 : (2000) 2 JT (SC) 426 : 2000 AIR
Advisory ground that hearing had concluded on 13- sew 682: 2000 Cri w 1487 4
:s report. 1-2000. In this case we have no hesitation Rajesh Bajaj v. State NCf of Delhi, AIR 1999
•solute or in saying that representation of the peti- SC 1216 : (1999) 2 JT (SC) 112 : 1999
when the tioner was withheld unduly and indefinitely AIR sew 881 : 1999 Cri w 1833 2
:; received and in violation of Sec. 10 of the Act, which Venkatachalam v. State 1998 Cri W 3189
ihowhas
se para 3
I rendered continued detention of the peti- (Madras) 1
1 tloner illegal. In similar circumstances, in. Radharaman Sahu v. Trilochan Nand a ·1991
.A. Khan, Habeas Corpus Writ Petition No. 45541 ot Crt W 1603 (Orissa) 1
1fidential 1999, Govind Singh v. State ofU.P. (Reported L.V. Jadhav v. Shankarrao Abasaheb Pawar,
:relevant in 2000(2) EFR 80) where _the representa- AIR 1983 SC 1219: 1983 Cri W 1501 3
below:- tion of the detenu was not forwarded to the Umesh Chandra Mishra, for Petitioners;
:nts made Advisory Board though opinion was given A.G.A., for Respondents.
and 35 of by the Advisory Board long after receipt of
!titioner's the same, we vide judgment dated 12-5- ORDER :- Heard and perused thcfim-
2000 held the continued detention as ille- HR/HR/ A328/2000 / ABD /RTT

"·
___ ....________ ___ _

4158 Vijay Prakasl;l v; ~tate qf Uttar Pradesh 11. J.

·~

pugned F. I. R. of case crime No. 137 of duces the yictim of his representation $1Dd
2000. under Sections 406, 420, 504, 506, not the nature of the transaction whi~h
IPC, P.S. Dibiyapur, districtAuraiya. Accord- become decisive in discerning whether-there
ing to the allegations made in the F.I.R. the was commission of offence or not. The Af*x
complainant supplied plywood and other Court observed that since the complalrti1;nt
goods worth R. 78,740/- to the petitioners had stated in the body of the complain:dnt
on their assurance that they would pay the that he was induced to believe that respond-
price thereof within three days. But. it is ent would; honour payment on receipt ofirt-
further alleged, the petitioners failed to pay voices, and that the complainant realised
the price after expiry of the period later that the intentions of the accused
aforestated and when complainant de- therein were not clear inasmuch as the·ac-
manded the price of the plywood supplied cused after receiving· the goods sold th¢jn
by him he was abused and threatened of to others and sti}f he did not pay the moriey.
being killed on 12-4-2000. It is also alleged ~prima faciet c~se was made out for inves~-
in the F.I..R. that the cheque issued was gation•by the i'uthorities. ·.
dishonoured. It has been vehemently sub- · 3. In ·L.V.''J'aahav v. Shankar.f~o
mitted by Sri U.C. Mishra. learned counsel Abasaheb Pa,war, AIR 1983 SC 1219, ttie
appearing for the pel ioners that the ingre- Supreme·ct?urt'h~s held:
dients of n me of the offences mentioned in ~e High Co.urt. we cannot refrain frp).ll
the F.I.R. are made out in the FIR and as
such it is liable to be quashed. Shri Mishta
oo~ervtng.lnight well have refused tQ_ m.-
voke its inherent powers at the very thr~s)l­
placed reliance on Radharaman Sahu v. old)n order to quash the proceedings, Cor
Trilochan Nanda, 1991 Cri W 1603, a judg-
these powers are meant to be exerci~
ment of Orissa High Court arid
sparingly ~d With circumspection when
Venkatachalam v. State 1998 Cri W 3189, ther~ is reason to believe that the procesSIGf
a decision of Madras High Court. In th~ fi~t law is ~emg .misused to harass a citizen.v
case, the complainant had suppiied some
goods to the accused on credit and when 4. hi M/SJ Medchel Chemicals and
requested the payment in cash, the accused Pharma Pvt. Ltd. v. M/s. Biological, E Lttl.
prevailed over the complainant to accept {2000) 7 JT {SC) 426 : {AIR 2000 sc 1869) I

cheques giving the impression that he b,ad the Supreme Court has very clearly Iar'd
sufficient funds in his account. Tqe cheque doWn. that· if the ·complaint in its enttrt't.Y
bounced. In the circumstances· of that case, discloses commission of offence the 'High_
it was held that it could not be said that Court has no' authority or jurisdiction to :go
any deception or fraudulent or dishonest into the matter and examine its correct-
inducement was practised by the aC~\lsed ness. As pointed out above the allegati~!,!s
and that in the fact situation of the case it in the instant case are that the compla.f#.~
would amount to breach of contract an(j it arit was induced to supply plywood @d
did not amount to cheating. In the second other m1;1tertals on the inducement of'\9F
case it was held that the dishonest inten- petltionet;s that they would pay ~he P9~¢
tion cannot be inferred for bouncing of within three days. The said averments, .!ti
cheques issued for existing dues. our opinion, constitute offence of cheaqijg
and An the circumstances the argumeiitS
2. In our opinion, the submission made advanced by the learned counsel for th~
bY. the learned counsel cannot be sustained.
It has been held, in Rajesh Bajaj v. State
petitioners has no force and the writ pe!f- .......
tlon is dismissed. This is. however, without
NCT of Delhi, ( 1999) 2 JT (SC) 112 : (fl~R prejudice to the right of the petitloners.:to
1999 SC 1216) inter alia, that it is not nec- apply for bail before the courts below. It 'Js
essary that complainant should verbatim also observed that nothing observed hereJP.-
reproduce in the body of the complaint all above would be treated to be an expressjbn
the ingredients of the offence he is alleging; of opinion on the merits of the case. ·
that it is not necessary that the complain-
ant should state in so many words that the 5. The writ petition is dismissed.
intention of the accused was dishonest or Petition dismissed.
fraudulent; and ~t the crux of the postu-
late is the intention of the person who in-
1432 Bhola Nath vj State
&urt·r spumed the contention with the 1982 CRI• L. J. 1482'·
observations that : (DEDHl ffiGH COURT)
J. D. JAIN. J.
"The F. I. R. mentions that Ishwar
Singh- "gave a thrust with the hallam"
Bhola Nath Arora and another,
tioners v. The State, Respondent
to Chauhal Singh which killed him. The
eye ~Ptesses repeat this story. Alc:o. no Crin$lal Revn. No. 256 of 1980,,
grievance ai_>pears to have been made 14-4-1982.* '- .
in 'the High Court that Ishwar Singh (A) Penal Code (45 of i860), S~
- Cheating - Accused deliverlntJ
was. or.eju,<ijced in his defence QY being
tain cheques for paying blalance ·
co~:vtcted of an offence with w4ich he for goods svpplied by dealer -
was not charged. The point was raised dishonoured - No attempt made
' cused to pay amount for en·Cru!lhDieii
" for ·the first time here before us. Con-
Sideriilg all the relevant circumstances, cheques - Accu8ed would be'
we do not think it could be said that to have committed offence
the accused was prejudiced in his trial'' (Evidence Act (1872), Secti~
'· · (emphasis supplied) Where an accused had p~d· -
amounts by mean~ of d~;md ·.
''12. It is crystal clear that no hard the goods supplied bY the .. .
afid fast' rule or guidelines can be laid for the balance amount certain
ift'-this' respect and every· case must d'e- delivered by him to the deal.er,
pend oh its own merit. the problem be- dishonoured on different dates
ing. 'essentiallr one of prejudice to the bank account showed that at no .
aeeused resulting from omisSion to any attempt was made by th~ ..
l·'·i frame a specific charge. to pay in sufficient amount fo~,
ment of the cheques, such matt~r,
t3. To sum up, therefore, the con- be suffici~nt to afford a ground for
viction as. well as sentence of the ap- suming that the accused had
pellant for the substantive offence of an offence under S. 420. (1930) · 31-
murder •·cannot be sustained. This ap- LJ 1096 (Bom), 1957 Cri LJ 438
pe~l is accordmgly allowed and the con-
and 1956 Cri LJ~- (M.ad.h Bha), R.. ~~)
-tricti.On·>8S wall as sentence of the ap- · · , lPmta
-Pellartt· i~ set aside and the case is re..,
(B) Criminal P. ·· " (2 of· ·
mlllided :to the Court Of Session for re- s. 177, 182 - Offenc~ of
trial· aft~r framing a charge under S. 302 erritorial jurisdiction of COurt .
()f the l. P. C. and in accordance with
ation of S. 177 - Not
lew. It shall b'e open to the Sessions
ludge·. to f~ame charges oB other counts ec. 182 - (Inter,retation of St'lt'W~'
Harmonious construction). '
·.which he . may deem necessary under - : ~

law having regard to the allegations In a case of cheating .. it could nt!_,, be

made by the prosecution in the charge- contended that s. 182 bell'lg a moresmr'
sheet under S; 173, Criminal P. C. and cific provision would only govern ., : th~:
other relevant documents. venue of trial in cases of cheating .lead~ i
ing to delivery of goods and as slich it :
14. Before parting with this case we would exclude the general principle· of ! .
also record our appreciation of the valu- jurisdiction under S. 177. · On a mere.
able assistance rendered by the amicus juxta-position of the two Ss. 177 -and·
ctiriae Mrs. Usha Kumar. 182 it is manifest that the latter p~:
vision supplements and does not. sup-
Appeal allowed. plant the general rule. Therefore ~t is .
the duty of the court to give a harm~
nious construction to bOth the proVisiohs
so that full effect may be given to bOth
without one excluding the oth~r. , t~re
*From order of S. M. Chopr~· ~ iJ~~ -
politan Magjstrate, New Delhi. · D/;.
4-H-1980.
EZ/EZ/B893/82/PGS/SSG-H
1483
L. l. 14.82
.·.being no seeming conflict or repugnancy Since' th-e company was left with hu~e
1H COURT) · in · the 'two. Hence, when S. 17-7 con- quantittes of unsold stock by end Of
!\IN. J. veys a cl:ear meaning it is not permissible the tertn Of its licenc-e, the licence was
and another, Peti.. to construe the same with reference to extended up to 30th April. 1976 and as
Respondent another Section i. e. 182 for the pur- per'~terms of the lic-ence the Complainant
), 256 of 1980. D/... po~ of controlling or diminishing_ the was required to sell the unsold quantity
effi~acy
.
of the fanner.
.
(Paras'
'
12, 15) to li' 'Ylliolesale merchant only after ob-
taining prior permission of the District
ts of 1860), s. 420 The provisions of a statute should be Excise Authorities, Kanpur. On Ist Nov.
:sed delivering cer.; so read as to harmonise with one an- 1976, the Complainant lodged a report
ng blalance amount other and the provisions of one Section through Mr. 0. N. Seth, their ExpoH
dealer - Cheques cannot be used to d-efeat those. of another
Manager, with Police Station Cannaught
tempt made by ae- unless it is impossible to effect recon-
Place, New Delhi, contending that some-
for encashment of ciliation between them. (Para 13)
time in the last' Week of April, 1976,
vould be' presmned' S/ShrC Bhola Nath Arora and Ramah
The court at t.Qe _,[>lace whr.re decep-:
ence under s. UO; Arora.' (the present petitioners), who de-
Section U4). · - lion is practised and inducemfult is made
to the person cheated to deliver pro- scribed themselves as partners of Mfs,
had Paid Certain pert~ 'W4,l have jhrisdiction to try the B. D. Raman Arora, Varanasi. contac1~d
demand: draft for 9~e_I!c~. and the courts. ~entiqned " in the Complainant through Mr. Seth·. . !"at
>Y the dealer. and S. 182 Wlll. also be competent, t6 try th'e their Head Office at 54, Janpath. · N~Vi
lt certain cheques said offepce in addition to such a Court Delhi and -expressed a desire' t(;f Ii'ft 'tlre
the dealer, w~e ' · (Paras 18, 19) unsold· liquor of various brands lying
;nt dates and. tli8 (C) Penal Code (1860), s. 415 (f) -
with the Complainant at Kanpur. 'Sihce
the financial position of the petitioners
. that at no stag~ , .· Purcl,mse of property by accused - Ac-
e by the accused was ·not known to the complainant: they
cused paying price by cheques - There were reluctant to agree to the said pro:.-
nount for encash.. would, ~ implied representati9n . that
uch matter would p<)sition except against payment in cash:
cheques .are· good and 'valid orde.r for
l ground for ore- However, the petitioners represented
payment. of amount and they would be that they were men of lakhs and would
~ had committed paid .wheDt presented - Cheques dis-
~0. (1930) 31 Cri make part payment bv means of bank
honoured ~ It could be pr~~1l)ed that draft and the balance by instalm~n~f'i
Cri LJ 438 (All) accused intended to cheJat. (P~uias 6, 7)
l<fh Bha), ReL on. through past-dated cheques to he. iss.ued
Cases Rderred : Chronologi~l~ Paras by them. Since the unsold qu!in~ity
(Para t) 1~60 Cri LJ 1674: AIR 1960 SC 1329 •12 as on 30th April 1976. could be sold to
~. . (2 Of lt74), · 1957 Cri LJ 438 : AIR 1957 All 246 : 1957 a wholesale dealer in - Uttar Prad~sh
e of cheating _ . only, necessary permission was obtain~d
All LJ 158 7
tf Court - Ope:. 1956 Cri LJ 68: AIR 1956 Madh Bha' HI by the Complainant from th-e Excise ·D~:t
•t excluded ·bY.. - . . ' 7
partment. Kanpur, on 7th May, 1976 and
l)n ot Statutes _ . (1930) 31 Cri LJ 1096: AIR 193'0 Born the petitioners took delivery Of th~
t).
179 7, 8 goods covered under invoice Nos. ·1560,
it could not be Cl869). 4 Ch App 611 : 38 LJ Ch 681 : 2l 1561 & 1562, all of even ~ate of 9th,.l),{ay;
!ing a more spe- LT 97, Smith's Case 13 1976. They assured Mr. Selh that ·,pay-
tlv govern · the (1832) 2 D & CL 480 : 5 ER 499 (HL). ment would be made and thus they in-
)f cheating lead~ Warburton v. Lov-eland 13 duced Mr. seth to accept part paym-ent
: and as SUch it (1785) 1 Leach CC 4th Ed 352 : 2 East by bank draft and balance payment by
rai Principle· of PC 893, Palmer Case •13 post-dated cheques and to effect deli-
'7. On a mere K. K. Sud. for Petitioners; D. R. Sethi very. The total value of the goods thus
o Ss. 177 and with R. K. Chandha, for Respond-ent. delivered to the p-etitioners on 9th May,
the latter pro- 1976, came to Rs. 1,44,252/36 p, out of
does not sup- ORDER:- M/s. Bhagat Industrial which a sum of Rs. 27,0001- was paid
Therefore it is Corporation Limited (hereinafter refer- by the petitioners by means of a d'e--;
~d to as ·the Complainant) has its re- mand draft and for the balance amounl
Rive a harmo-
1 the ·provisions gister office at Khasa. District Amritsar four cheques dated 5th Jun-e. 1976, dated
e given to both and its Head Office is situated at 54, 24th June, 1976. 19:h ,July, 1976 and
1e other. tllere Janpath, N-ew Delhi It. inter alia, deals 14th Aug. 1976, in the sums of
in Indian manufactured foreigl'l liquor Rs. 29,3l3/36, Rs. 29,3l3/-, Rs.: 29~13/,.
,I,,

hopra, Metro- and had wholesale licence fOr the same

v Delhi. ·. nJ:. and Rs. 29,313(-. respectively ~ere deli";'
in Uttar Pradesh uptill 31st Matclt. 1976;
The wholesal·e business of liquor in vered by them to Mr. Seth. The said
Uttar Pradesh was being managed from ch-eques were presented on the due
its Branch at Ka1'lpur Cantonment. dates to the Bankers of tha petitioners
~0
b~th.e same.'were ret~r~ci.unpaid. with the same. Henc~ng aggrieved
t-he -endorsement. "refer j;o drawer 17 . on petitioners have. come up in this
two cheques and "not arranged for" ,on vision.
the other•two cheques. The complainant
further contended that after the remo- 5. The learned counsel for the peti• ·
val of the goods and subsequent to the tioner has. at the very outset, canvas;,
dishonour of the cheques, the petitioners sed with considerable fervour that the
did not at all contact the Complainant transaction in question is just a routine
and inform them as to why the cheques business dealing. Where Roods are sold;
had been dishonoured. Thus. it was credit and the question of any
alleged that the petitioners had dishonest or dishonest intention on the part
intention right from in~ption and with the petitioners at the tiine of the
intent to cheat the Complainant and and delivery of goods did not arise.
cause wrongful loss to them and wrong- verting to S. 415, I. P. C. which
ful. gain to themselves they did all this. cheating. he has urged that two
The Complainant asserted that the con- tial ingredients must be proved
II r. d,upt of the petitioners proved their dis- an offence of cheating can come
tl()pe~t and fraudulent intention from the exjstence. In the first instance.
i .. V.ery ·beginning and even when they must be deceit and secondly, there
I; were contacted per~onally they told them
th~t Ahey had suc~eded in obtaining
be fraudulent and dishonest
to the person deceived to deliver .
th~ goods worth Rs. 1,44,252/36 F. for property or goods. In other words,· ·
j~J~ . ·:~Rs. 27,000/-. It was submitted ceit must have been practised before
tl}at _,!he Complainant would not have property is delivered. Thus, his
del~ve.p~d the goods but for the induce- rnission precisely is that even ......, .........
~eqt that the delivery was being effect- there was delivery of property td the
ed against post-dated cheques with the petitioners, as alleged by tbe complaift'-"
assurance that the same would be hon- ant but there was no de~itful indtice~
oured on presentation on due dates. ment as such to do so. He has sough1
2. The Police after invest;gation put to countenance this argument by ad;:,
in' a ·challan tL'1der S. 173, Criminal verting to the broad facts of the case;
P, :C. (for . short the Code), for prosecu- namely. that the whol·esale licence for
tion of the pet'itio11ers under·- S. 420, Indian made foreign liquor of the Com.:,
t. P. C. plainant having expired on 30th Apr,P;
3. After entering appearance the peti~ 1~76, the Complainant was faced with~a>.
tio~en( hloved an application. purported grave situation i. e. threat of total loSs
to' ·'be under S. 239/294 of the Code, with regard to the amotint of the e:x;ci~~
contending that the subject matter of paid by them. It is pointed out tha:t~
the _challan was just a business trans- a,ecording to the excise rules obtaining
a'cfion . between the parties and at best in Uttar Pradesh, once excise duty ·has
it g~ve :rise to civil liability. They also been paid. it is not refundable and at
s6ttght ' permission to produce certain best Complainant could claim the cost
doctiments in order to demolish the of the unsold liquor from the Ex.cise
allegations of the prosecution: in ~gard Department. Hence, the anxiety on · the
to the ingredients of cheating. Further part of the Complainant to find out some
they ~xpressed a desire to be examined sui table customer. It was in this back-
befOre framing of the charge and con- ground that the Complainant contacted
tended that the investigating agency has the petitioners and persuaded them to
manoeuvred and twisted the facts in purchase their unsold stock. Be that as
order to usurp jurisdiction at Delhi for it maY. this contention of the p~titioners
investigation even though no part of the cannot be entertained at this stage be-
cause of action had arisen at Delhi and cause for framing a charge under S. 240
the goods were ·delivered as well as Of the Code. th~ only material which
received in the State of Uttar Pradesh. can be looked into is the poUce report,
the documents sent with it and the ex-
4. Vide impugned order dated 4th amination of the accused, if any. The
A~. .1980, t~e learned . Ma~strate while Court cannot embark upon an enquiry
re3ectmg their aforesaid ~ayer found as to whether the evidence in this tfase
that the fads disclosed prima facie a is reliable or not to justify the "lr~amiJlg
case under S. 420, 1. P. C. and that the of the charge. Hence, having regard
Court at Delhi had jurisdiction to try lo the prosecution version a~> !aid, there
Bhola Nath v~ Slate
'0
eeling aggrieved little doubt that ex facie the and the mere fact cheque is
ne up in this approached the Complainant dishonoured may not in ttsel'f gfvei riSe
sale of unsold stock of liquor to to a criminal offence. However, the
Even otherwise it does not stand position is different where the property
•unsel for the peti- to reason that the Complainant would is purchased by the accused and the
·ery outset, canvas- have on their own suggested the peti- price is paid by cheque. In such a case
fervour that the tioners to pay the price of the liquor there is an implied representation that
1 is just a routine
by instalments and issue post dated che- (i) the cheque is a good and valid or~er
~e goods are sold on ques in respect of the same. At least, for payment of the amount and, (ii) that
>n of any cheating sUch a course does not appeal to reason. the cheque would qe paid when present-
1 on the part of On the oth2r hand. the circums' ances ed for payment. Illustration (f) to
· time of the sale clearly show thal the petitioner Shri S. 415, Indian Penal Code. provides a
did not arise. Ad"- • Raman Arora opened an ~ccount clue to the mind of the legislature- in
. C. which defines with Union Bank of India at Varanasi such matters. 'rh."? said illustration is
:i that fwo essen- on 28th April, 1976, by depositing as under:-
b~ proved before Rs. 500/-. Thereafter, further sums of "A intentionally deceives z into~' a
g can come into Rs. 9,000/- and Rs. 20,000/- were de-
: instance: there belief ·that A means to repay any m."tiqey-~ ·
posited on 29th April. 1976 and 6th that Z may lend fo him and the'lf.~l&-;
ondly, there must May, 1976. respectively and withdrew
onest inducement dishonestly induces Z to . lerld · hirq
sum of Rs. 27,027/- by means· of a money. A rtbt inten_ding to reP:ay it -!fi.
I to deliver any bank draft on 8th May, 1976. Obviously, cheats." . ·it ' ' .. ~'~
other woras, de.: the bank account was opened with the ~ ~ "j '
tctised before the avowed obj.ect of making part payment 7.On its plain language,it is manPi
Thus, his ·sub- to the Complainant by means of bank; fest from this illustration that :what ~:iS·
tt even though draft. The learned counsel for the peti- material is the intention of the ·drawer
property to the tioner has also canvassed fervently that at the time the cheque is issued; and, the
Y the comJ)lain- on the prosecution's own showing the intention has to be gathered from the
leceitfui indl1ce- petitioners did not make any representa- facts on the record. If from the c1~·

I
He has sought tion that they were afflu'E'nt persons and cumstances it is. established that the
rument bv ad~ had plenty of money. A perusal of the failure to meet a cheque was not a~
:ts of the case, police report under S. 173 would show cidental but was the consequence ex.,;
:ale licence for
)r of the Com.:.
that on the Complainant asking for cash peeled by the accused. the presumptiofi ·~
if
payment down right against delivery of would be that the accused intended ;to- '
on 30th April, goods, Shri Bhola Nath said lJtat so cheat. Reference in . this context ~'
s faced with .·a much amount could be paid in cash made with advantage to Keshavji
t of total loss only by some Birla i.e. by some big Madhaji v. Emperor, AIR 1930 Bom
t Of the excise industrialist. But he agreed to pay a 179 : (1930-31 Cri LJ 1096), Ajodhytt
nfed out that part of the price in cash and promis- Prasad v. Chiranjilal, AIR 1957 Alt
u~es obtaining ~d to pay the balance by sale of goods. 246: (1957 Cri LJ 438) and Shantilal,-v,
;c1se duty has Soy they issued post-dated cheques. State. AIR 1956 Madh Bha 19 : (f956
ldable and at Tliis appears to be a natural course of Cri W 68).
!aim the cost events when a transaction involving sub- . :~~- _:..1
m the Excise stalltial amount is negotiated. Hence, 8. In Keshavji Madhvji (supra)i>,rthe
nxiety on the prima facie there is evidence for the facts were that accused induced the-;lebnt'..i
find out some presumption that the petitioners must plainant to advance a loan to them and
in this back- have held out an assurance to the Com- gave a post-dated cheque representing
mt contacted plainant that the balance price will b'= to him that the cheque could be encash-.
:led them to paid bv means of instalments and the ed on the d~e date. Broomfield, J. whd
Be that as cheques would be honoured as and spoke for the court,· summed up the
te petitioners when presented on due dates. legal position at page 181 as follows:
is stage be-
6. No doubt, the drawing up of a "What the prosecution has to do I
..lllder S. 240
feria! which cheque .does not imply any representa- take it, in a case of this kind is to e;ta:::
olice report, tion that the drawer has money in the blish facts which point prima facie to
:md the ex- Bank to the amount shown in the che- the conclusion that the failure to meet
any. The que, for he may either have authority the cheque was not accidental . but ~a's i
to o~r-dr;:~w or have an honest · inten- a consequence expected ·and . th'etdof~, I
an enqUiry
n this case fion:· ot paying in the necessary money intended by the accused. ~~·. wi11Jh1!?J38'
he framing before 'the cheque can be presented. In for the accused to establish· any fa~ts
ing regard this context a post-dated cheque is a there may be in ·his favour which j;Je
laid, there , mere promise to pay on a future date specially v.7ithin his knowleage and ' as
.. ~e prosec11ti<m co.uld 1;1ot: pe
tedly, 4~ is llVl~U~
~ll!cetlted, tq. .have any information:." his own name and
issued the cheques in question on
·9. I am in respectful agreement with of the firm M/s. B. D. Raman
this observation inasmucli as the pro- although the cheques were issued in
secution can only establish some ob- account of M/s. R. S. & company,
jective facts as t0 warrant ur1 inference .. ii
Of fraudulent intention Oil the part of 10. The next submission of the learn'i
the accused and it is then for the accus- .ed counsel for the petitioner is that the
ed to come forth with facts within his Court at Delhi lacks territorial j ·
special knowledge to show that depite tion to try thjs offence inasmuch as the
reasonable precautions taken by him he goods in question were delivered by the
could not prevent the cheques being complainant to the petitioners in
dishonoured. In other words, dishonour Pradesh and the same were received
of cheques was accidental and not the latter in Uttar Pradesh. He has
known and expected consequence of his v.erted to S. 182 of the Cod~· ·in
i conduct. In the instant case. as many attempt to canvass that it impliedly;
~ four cheques were dishonoured on eludes the general rule emboc:li'ed
I diffe.reht dates. The bank account shows Sec. 177 of the code that every ~
I
I
tqat at no stage any attempt was made shall ordinarily be enquired into
QY the petHi9ners to pay in sufficient tried by a Court within :whose
;·
amount for encashment of the cheques. jurisdiction it was co:mlllitted. · 'D\lU,.~>J:~M
I
11
!~.
The reason for this, according to the (I) of Sec. 182 reads as under :.....,. :
learned counsel for the petitioner, is "Any offence which includes
that the goods supplied bv · the com-. may, if the deception is practised , by.,n~~allii!L
plainant were defective as being sedi- of letters of telecommunication
mented and the complainant was inform- ges, be inquired into or tried by '
ed; of .the same specifically vide their let- Court within whose local jurisdictil)~
ter dated 20th May, 1976. · The~eafter, in such letters or messages w~re ;genli'. 1of
reSponse to the petitioner's communica- were received: and any offence •·o~
tiOn the complainant deputed· their Sales cheating and dishonestly . inducing a~
Representative Shri; J. S. Virk to see livery of property may be inquired- il!rto
Raman Arora, petitioner No. 2 at Vara- or fried by a Court within.· wl:lose' lot:ltt
nasi and,·he· carried samples of defec- jurisdiction the property was delive~
ti'fe liquor on. 24th June, 1976~ against by the person deceived or was re~ived± ·
a signed endorsement original where- by the accu.<>ed person."
of .has . been filed in Court. Be that as .... -.-J .. ·.J
it may, it is essentially a matter to be 11. Counsel for the petitioner :r~l;i,~~
gQl).e into at the stag.e of trial. As al ... on the second part of this sub-sec~iOI\ ,!?,
r.eady ,JobServed, at the stage of charge c~untenance his argument tpat J~_, 1· ~
such! like evidence cannot be . consider- stant being an offence Of cl:leatinal a~
ed in view of the explicit language, of dishonestly . inducing delive:cy qf: P.r9r
S. 240 of the Code. How far the peti- perty can be inquired into ,or tri~S.~ pX,
tioners succeed in .establishing the facts a Court within whose loc.al j,lfrisq,i~Jtism
th~ property was delivered by the C<>mq
in . j,ustification of their defence for not
depositing sufficient money: in the bank pla,inant or was received bY, the ,peftq
to meet the demand of the complainant Honers and by n,ecessary in;lplicaUqn ~~~'
against cheques on due dates is evident- jurisdiction of the Court at Delhi... ~
ly a matter to be gone into by th'e trial be ousted.
Court at the appropriate stage and I 12. Chapter 13 of the Code deai&
need not make any observation with re- with jurisdiction of the Criminal Courts
IJ gard to the same. As at pr~sent, all I in inquiries and trials. Section 177 in-
~~I, need say is 'that the material on the re- corporates the ordinary/general., ru117-;:~~f
cqrd is sufficient to afford a ground for jurisdiction. as stated above, while --~e,
presUming that the petitioners have Sections following it. viz., 178 t<? , .lB~ .
.l
c()mmilted an offence under S. 420, embody the exceptions. The · gene.!
lj Iildiari Penal CQde. It may, however, ral pr~dple of law i~ that a1Lc~~1f
' ~ peNirient · fo add here that Sh:ri Bhola loc::1l <;md ,,the" j,uri~dictipn }o.. 'tty. -~ .·~. r:fi
N~tfi. ·~~tibner, ·has since died and • V.e son for an offence dependS·~~.,,~:
affi·' now . .coilcemed only Witb Shri crim'e having been ~<,munitt~d·'. wit~:
R~~ah A1,<}~-~~ ·~htioner No. ~· ',1\dJilh- the area• of. • sucll jurisdiction.
•
The
- •
word.
. : f .,,;t..
,;lil.' lif~np~, .f~~
t was he wllo
1 rq!Uii-IIU,Y ' 'hflS 'been. Ctil:\Strtled to mean Parliament is m\d
n question r>n · .provid~d, Q.therwise in when other passages can elucidat~ .that
J. D. Ram~ • (See -Narumal v. S~ate of obscurity, that recourS'e ought to be had
) were issued in :J:JVJ:uu•O<J. AIR 1960 SC 1329): (1960 Cri to such context for that purpose": for
S. & Company, 1674). That is whv the other St!ctions as the judges said in the House of
178 to 182 constitute exceptions to Lords in Warburton v. Loveland, (1832)
ission of the lear~~ general rule. For obvious reasons, 2 D. & Cl. 480 (500), "no rule of con-
tetitioner is that t.b.e argument of the learned counsel struction can require that when the
territorial jurisdiC.. -J~. petition~r that Sec. 182 being words of one part of a statu(<! convey a
ce inasmuch as the · · specific provision will govern clear meaning it shall be neces-
re .~elivered by the of trial in cases of ch~a· ing sary to introduce -another part
letlttoners• in Uttar to delivery of goods and as suclt of a S'_'atute for th~ purpose of controll-
e were received b:Y, exclude the general principle of ing or diminishing the efficacy of . the
adesh. He has_ ;ad.., is devoid of any merit. On first part.'' "It is not the duty of a court
th'e Cod!3 .. in an iuxtaposition of the two Sections of Law,'' said Solwyn L. J. in Smith's
at it impliedly eJO-!. and 182 of the Code. it_ is m~~fest case, (1869) LR 4 Ch App 611 (614),. "to
·ui.e embodi'ed in the latter provision supplements ·and be astute to find out ways in which the
that .evezy off.ence not supplant the general rule. It is obj,ect>1 of an Act of the legislature .Jriay
mquired into and :mten<~ed to provide for the difficulty be defeated.''
ithin ·-whose iQ9.al . may sometime arise in pros.ecuting
ttllttlitted; cSub.oseo; 14. Th,e maxim "expressio ·' uriH.1s
.... -~···.-- in a _Court within whose ter- est exclusio alterius'' (express ; niett•
as·-under : - , -,,,dJ jurisdiction deception has been tion of one thing implies th~ exch.isiort
inc~udes· , cheating ._ . practised for want of requisite Of another) is not one Of universal ap~
rractised , by tneans pr,o(>f. Thus it is an enabling Section plication. It 'is not enou~h that the ~x­
unication · · messa!;.. ~'q provides alternative venue of trial press and tacit are merely incongruous;
or tried ,by , any ® as to ensure that the accused does it must be clear that they cannot' r.ea-
local jurisdiction- not get away with the ill-gotten fruits sonably be intended to co-exist. .,
as' WE!re 'Sl!bl- 'or of crime on some technical ground or
any offence of for want of adequate proof of its com- 15. It is thus the duty of the Court
-Y inducing d~ . ·- mission in a particular area of iurisdic- to give a harmonious construction -to
' be inquired into tion. both the provisions so that full effe~t
.thin wlfose lOCal may be given to both without one"eX:J.
Y was'' delive~
13. It is a well settled rule ·of in- eluding the other, there b~ing no s.eem~
terptetation that the proVISions of a ing conflict or repugnancy in the two.
, or-. was ·received ~tute should be so read as to har- Hence. when St!c. 177 conveys a clear
' -.. ..J I ; . t: ~

moruse with one another and the provi- meaning j_t is not permissible to COQ-:-
sions of one Section cannot be used to strue the. same with Nference to ari;:_
-defeat those of another unless it is im- other Se¢io.n i. e. 182 for the purpQ~e- ~t
P9S'sible_ t0 effect reconciliation between controlling or diminishing the e~c~i
tftem. considering the true meaning of of ~he_ fqpner. More so, when the~7 -~
ihe words or expressions used by · tlJ.e nQthing- i,n the language of the 'l~tter
le~Pslature the Court must have regard which will control or impinge upon 'tile
to main object a~d scope of the statute effect of Sec 177. Surely, _it is n?t ·iii.:.
to be read in its entirety. tended to abrogam the general rule of
In- "Craies on statute Law" 7th Edi- jurisdiction with regard to the trial of
tion, the followin,:{ exposition of the criminal offences and it is merely ~?UP­
rel-evant rule Of constructiOn is found plemt!ntal thereto.
at page 98:- 16. It may be pertinent to notice
Code
deals that the Law Commission in its 41st
~riminal Courts "It is the most natural and genuine Report has remarked thus : -
:ection 177 in- exposition of a statute to construe one
~nerat rule ·!of par,t of Statute by another part of the "As th~ word 'ordinarily' used in Sec-
IVe, while'; 'the same statute, for that best expresseth. tion 177 of the Code indicates, the gene-
, 178 ·to lil2 th.e meaning of the makers .. . . . . .. . and ral rule laid down in this sectipn is
Tp~ _gei).e;-' ~ ,exposition is ex vis~ribus actus." neither exclusive nor peremptory.-- In
tt alt. crime 'is But thiS rule of construction is never the . subsequent sections - alternative
tq_)zy 8.'''•• ~--. ~ii9Wed to alter the meanjpg of venues for enquiry and trial are pro--
dS.'ypon_v ~-'
1 ' • -tlii! . what is Of ~self clear and explicit; vided for in regard to certain typp of
1itted''
, .-
·(&!:..'Wl JllR
it is only when. as the court said in offences. Barring S. 178 which -· em-
n. Palmt!r's case,' (1785) 1 -Leach: C. C. 4th powers the State Government to super-
0 T}le word
. ,: . Ed. 352 (355), "ahy part of an Act of . cede the normal rt1le in regard to cer-

----- -------"""-----
li488 J. C. ::Mehta v;:s~
~a~ sEfssibns: trials, the 1ot~r lpro'Wsions · \~ 1.fl82 CRL L. J. 1488·.~i· ..
~pjllemen~that rule · al'ld,,eltber- auth- · (DELHI HIGH COUR:T·} w
ot~iie certain· ven.ue_s' different from the J. D. JAIN, J.
J)iace of commiSSion of offlmce even J. C. M~hta. Petitioner state
where it iS known '>r can be determined, v.
or authorise different venues where the another, Respondents.
place of commission of offence is prima Criminal Revn. No. 126 of 1981._
facie not determinable:" 8-4-1982*.
(A) Criminal P. C. (2 cYf 1974),'
17. Again after analy;;:Og the differ- tions 107, 116 (6), 397 - .. -
ent views on the controversy with re- under Sec. 107 - Nature and scope·.·
gard to the venue for the trial of -Enquiry under Sec. 116, if not
offence of cheating, the Commission pleted within six months __: Pr·'oc4~¢tllib,gij!
recommended in para 15; 36 that : stand tenninated automatically -
"On the strength of this analysis it sional Court cannot direct
might be argued in comparable cases that Of proceedings after it bas
no' part of the offence of cheating and end,
dishonestly inducing delivery of property
takes place at the accused person's end.
Se~tlon 107 is preventive
ThEl , applic~tion of Sec. 179 (now Sec- punitive. It is not intended fori' ·
tiari · 178) or Sec. 182 (now Sec. 179) m~nt of past offences and the
ffi}jiht be f.:E'gard~d as of ·:doubtful vali- of startin${ proceedings under t
QJ.Jy., .Tfi.ere shou1d, however, be of no tion against an individual is to
()~iectw~ i,n principle to. the· person ac- him from commission ·of breach·
cused· ;Of cheating from .a distance being which is imminent. As the ot4:>cl:redlinl!fi
trtabli!.'!or the offence. not only at the affects the liberty,~{ the subject
place where his victim· was deceived has not been found ·guilty of an o6''etti~\!!f!
'mwar in~de to <part. with property, but
it is essential that the power shoUld'
exercised strictly in accordaiiceN
~at;). ~A1d~he place where the ~ccused has law and the purpose of such· orloeE~~di:!.S
i b~. carrying on his dishonest practic·es ings is not served if it is ~pt
land reaping the benefits." . for months and months Qn one ;Pr~,i;(\!xt
(emphasis supplied) or the other. {PI;l:ri}·JU
l
: ··18. Hence~ there is no escape from Section 116 (6) contains twoJi8i~ .·
. the conclusion that the court at' the legislative mandate. viz., (1) it dt!tgfg
Pf.ii.ce 'w~~re deception is practised and mines the span of life of the prod'~~ .
Hlducement is made to the person cheat- ings under Sec. 107 as lrix m<:mt~~;; :!t~!!
&1·'1:0' deliver property will have juris- (2) it _lays do~n t~e cons~q_uence Of ~f!'!J-j
·
IDctio1f'fo try the offence li).d the Courts compllance w1th 1ts prOVISIOns. The·~:>}:
Qi¢ritioned in Sec. 182 will also be com- of expression "shall, on the e.xpii:y oft
~ieiif (0 try 'the s11id offence in addi- the said period stand terminated'' le"a:.Ve~ t
P,'bh j9, s~c,h a court. no room for d~ubt that irl the e-<reh'i of !
the inquiry not being completed. Wi,thiti'
. · 19~ · It is trite that the jurisdiction is the prescribed period, the proceedbtgs
; priri'larily 'to be decided on the' allega- come to an end automatically and :n:O
tions in the complaint. Hence the order of the Magistrate is, at all, called
Court at Delhi will be competent to try for. Indeed, the Magistrate becomes
this offence. functus officio and he is divested of the
seisin ~f the case. So. he cannot reirive
20. To sum up, there is no merit in the same unless, of course. he enr~s .
this reviSion petition. It is accordingly the power ve3ting in him to contiiiue
dismissed. The petitioner is directed to the proceedings by recordinR spe~l
appear in the court concerned on 27th reasons therefor. In other words; ~h
April, 1982. automatic termination of the enqUiry"n~
li Petition dismissed. operation of law, the same is dead a'#d
r
!~
gone for all intents and purposes·"ah~
*To re'lf-ise or?er of J. D. Kapoor,,AddL
li S. J .. Delhi; D/- 24-1~1981. ,,_ .,~-~.,
~
·I EZ/EZ/B891/82/VCD
.·.
,,
·.J Biswanath v. State ~ 1901
sentenc~d
Cri. L. J.
beyond reasonable and concurrent by
n case m~ .?ly be- the High Court under Sections 325/
some· cmbellish- 34, I. P. C. is maintained.
)pinion all the infir- Order accordingly.
1t by the learned 12. The next point that falls
were neither vital consideration is what is the na-
~ct the real substance of the offences that the accus-
:! prosecution case. have committed on the evidence 1976 CRI. L. J. 1901
s. therefore, we find before the Trial Court. To begin
plete agreement with as pointed out. above. multiple (CALCUTTA HIGH COURT)
by the High Court uries were received by the deceas- P. K. CHANDA AND SUDHAMA Y
Sessions Judge was persons which were caused by BASU, JJ.
ed in reiecting the weapons like lathis and are of Biswanoath Agarwalla and others,
e two witnesses. The character. Furthermore, the Petitioners v. The State, Opposite Par-
:he· learned Sessions uries are not on any vital parts ·of ties. ·
this aspect of the body. and even those which are Criminal Revn. Case No. 951 of 1974,
erned was manifec.tly the scalp portion appear to be D/- 19-9~1975.
i was not legally ry superficial. There is nothing to (A) Penal Code (1860) S. 420 --
:1e High Court was that the accused intended to Cheating - Delivery of goods on credit
:1e propositions laid the deliberate murder of the and on the basis of post-dated cheques --
ourt reg::~rding inter- deceased persons. There is no Failure to provide funds for the cheque
ppeal C.'!:clinst an to show that any of the -- Whether amounts to a mere breach
al, namely: (i) the ordered the killing of the of promise giving rise to a civil liability
appellate Court · to persons or incited or in any or constitutes an offence under S. 420 ~
~ of fact; (ii) the a desire to kill the Intention of the drawer is an impOrtant
with the order of at the spot. In factor in deciding the question. Case law
it is indeed only a circumstances we are satisfied discussed. (Para 7)
view different from there is no legal evidence in (B) Criminal P. C. (1974), s. 397 (2)
>Y the High Court. case that the accused intended -- Revision -- Interlocutory order --
rightly found that cause the murder of the deceased. Test to decide -- Framir:g of charge is an
if properly appre- fact, however, remains that the interlocutory order:
view which could be have caused multiple iniu-
me taken by the both the deceased persons on An interlocutory order has not been
he High Court was, parts o£ their bodies and, defined. No single general test for fina-
in reversing the lity can be laid down, as final or inter-
they undoubtedly had the locutory nature of order has to be consi-
al. that the cumulative effect dered in relation to the particular pur-
the injuries would result in the pose for which it is required. A judg-
Ly it was argued by th of the deceased. As all the
following the reasons ment or order may be final for one pur-
appear to ha.ve acted toge- pose and interlocutory for another or
)essions Judge, that and under a pre-conceived plan
:!equate motive for final as to part and interlocutory a~. -·ro
developed at the spot and part. However, generally speal{:ng, e.
commit murder of is clear from the fact that
and to cause judgment or order w·hich deter-,nines the
suddenly pounced on the de- principal matter in question i.s· termed as
)thers. It_ is we~l~ d and went away together they final. But an order which,.tfid not finally
ere the d1rect evi- be deemed to have possessed a
the assault is worthy
can be believed, the
I intention to assault the de-
set the controversy at T".:st and kept the
action alive is not :nne!. Framing of
with the knowledge that the charge after all is nothing but written
:ive becomes more or 1 caused by them were .likely formulation of spedfic accusations m.ade
Sometimes the mo- ·
d can be proved an_d
:!ver the motive IS
I cause the death of the deceased.
these circumstances, the accused
with. certainty and communicated to the
accused so that he may defend himself.
committed an offence under Formul-ation of the charge, therefore, can-
stery and it is verY i 304 Part II of the Indian not in any view of tht' matter be said to
te the same. If. how-' Code and not one under Sec- finally determine the matter in issue.
tce of the eye-wi_tnes-1 302, I. P. C. We would, therefore, The controversy between . the parties is
rthy and is bell eyed i this appeal only to this extent hardly set at rest. Thus fr<;:ming of charge
vhich has placed '!n-1 the conviction of th€ appellants is an interlocutory ord.ef (1948) 49 Cri
m them, the question! altered from that under Section LJ 625 (FC) and 1968 Cri LJ 876 (S~),
is any motive or not to that under Section 304 Part Relied on. (Eara 8)
irrelevant. For th~se I. P. C. and their sentences reduc-
re we agree. with tne from life imprisonment to seven (C) Criminal P. C. (1974), Ss. 482,
t 'the prosecution _has rigorous imprisonment while 397 (2) -- Inherent powers -- Scope of
~ove the case agamst the fine. The conviciion JSiLS/D785/75/AS/LGC
'11lQ2 Biswanath v. State (S. Basu J.)
and U&e - Inherent powers .if .can .be 2.
{idr
The· prosecu . · .
Cri.
. is
exercised in case of interlocutory orders. during November, 1970 to ebruary,
It is the -.1nadequacy inherent in the the petitioners representing
Code which fails to provide for all con- Cycle Importing Company of 80-D
tingencies which has called for the crea- tinck Street, Calcutta had n~erous
tion of and saving the inherent power of transactions with T. I. and M. Sales Li-
the Court to act ex debito justitiae. The mited in respect of cycles components
same .:~lso explains why this inherent and other accessories. In course of the
power is not to be exercised in matters transaction good5 were supplied to the
specially covered by the other provisions petitioners against cheques. The goods
of the Code. Section 3B7 (2) is . a oor were sent from M.:~dras to the Branch
which apparently fetters the revisional office of the T. I. and M. Sales Limited
powers of the court only. There is no- hereafter referred to as the complainant
thing in Section 482, Cr. P. C. that it is company. The delivery ol'ders were
to be read subject to Section 397 (2). But handed over to the petitioners against
even then the court, when it is unable to cheques with instruction to present the .
exercise its revisional powers in case of cheque for encashment at a future date
interlocutory orders should not t.:~ke re- In course of the aforesai<l transactiorl
cqurse to its inherent powers in that oome cheques werk encashed but many
.field. Indiscriminate. or frequent use of others were dishonoured. The ,complain:~.
-the inherent powers in that foashion ant company pressed for payment of the
-would obviously render nugatory the outst.:~nding cheques and declined
bar put by Section 397 (2). It would be make over further goods. Thereuf)On
doing indirectly what the court is <Erect- petitioner, Promode Kumar
ly forbidden to do under Section 397 (2). in March, 1971 entreated the
Inherent powers of the High Court is a ant company's agent to <:~Jlow him a
mighty reservoir to be drawn upon by further time .:~nd assured full ~..,,,.~~-,.
the litigants in cases where the channels of the outstanding cheques. On his ·as-:.
of ,other legal remedies under the Code surance that cheques w>Guld be fully
are dried up. But it would be inadvisable honoured if deposited after the 30th of.
to exiJ'and its ambit _possibly except in Aprii, 1971 and on his representation,
r.are cases to spheres specifically sought further delivery orders of the goods were
to be excluded by the Code. Case law made over to the petitioners on 16th of
discussed. (Para 9) March, 1971 and 26th of March 1971:
against receipt of two cheques: bQtll.
Cases Referred : Chronological Paras dated the 30th of April, 1971 for R,u~~
1975 Cri LJ 325 = AIR 1975 SC 495 9 1816.40 and Rs. 1413.30 respective·l.y ..
1975 Cri W 812 = AIR 1975 SC 1002 9 whic.h were signed by Sri Biswana:tQ
Cri LJ 268 = AIR 1972 SC 470 5 Agarwall.a. The cheques were presented
Cri LJ 876 = AIR 1968 SC 733 . 8 on the 4th of May, 1971 for encashm~t
. C~i LJ 760 = AIR 1961 SC 674 but were dishonoured. · · ...
5
= AIR 1960 SC 866 9 3. It appears that endeavoii~$ .
1954 Cri LJ = AIR 1954 SC 406 9 were made by the complainant to contaht
1954 Cri LJ 1n.oo AIR 1954 SC 724 6 the firm of the petitioners but it waS
(1948) 49 Cri LJ AIR 1949 FC 1 8 found that the business of Calcutta Cycle
(1940) 41 Cri W 3~4 = J 0 '!.il Lah 93 Importing Company at 80-D, Bentinck
I 6 Street, Calcutta was closed .and all stocks
(1938) 39 Cri LJ 2~ = AIR 1938 Mad 12~ removed.

(1935) 39 Cal WN 1~82 6 4. Under the circumstances one

AIR 1920 PC:86 = ; \7 Ind App 124 8 A. Stephens, as the Regional Sales Mana-
ger of T. I. and M. Sales Limited filed a
P. C. Ghosb md \Probodh Ch. Ghosh, complaint on 31-5-1971 before the then
for Petitioners;;.S. K. 1P<>.1it, for the State. Chief Presider1cy Magi<;trate, calcuttA
SUDHAM.\y BASU, J. : - This Rule dgainst the petitioners. On the said 31~
relates to an orG.er dated the 22nd of of May, 1971 the learned Chief Presi•
July, 1974 passed ~y. the Metropolitan <lency Magistrate directed D.C.D.D.
Magistrate, 3rd CoUlt, bllcutta whereby take cognisance and investigate the
the lootne<l Mag~1r~ -~framed charges On the 6th ~f September, 1971 the
in case No. G. R. :5'21 tf 973 under Sec- tioners surrendered before the
.
tion. 420,_ I.P.C. 'in~:··~ ction 420/109,
I.P.C. agamst the petltl(}Jl'-;s.
were released on bail. On 31st
1973 the police submitted
Biswam.th v. S,.,..(llc•Ba=J.) , ~ .ilflml
1tion case ; the petitioners under S€c. 120-B 1934. No payment was~~ the 2nd
iO to FebruAry, 1 with Section 420, I.P.C. On the 22nd of July, 1934. An assistant of the firm
resenting Calcutta July, 1974 the learned Metropolitan met the accused and pressed him for pay-
1pany of 80-D, Ben~ 3rd Court, after hearing the ment. The accused then gave cheque for
ta had numerous perusing the documents - as the amount of the bill and the same was
I. and M. Sales Li~ to under Section 173, Cr. P. C. receipted with a revenue stamp under the
cycles components charges -under Section 420 against signature of the assistant. The cheque
. In course of the petitioner. Promode Kumar Ag.ar- which was dated the 3rd of July, 1934,
re supplied to the a and charges under Section 420 read was dishonoured on the 4th of July. The
1eques. The goods Section 109, I.P.C. against the peti- complainant firm sent another represen-
ras to the Branch Biswanath Agarwalla. The said tation to receive the payment of the bill,
td M. Sales Lirriited is challenged by the petitioners. but no payment was made. It was held
• as the complainant that a person paying a bill by a cheque,
very oroers were Mr. Prasun Ghose, learned Ad- of-date or post-dated, and obtaining the
petitioners agam.st in support of the Rule submitted bill receipted as by the cheque, cannot be
:tion to present the the m.aterials on record were not charged ·under Section 420, Indian· Penal:
:nt at a future ·d4te. to maintain the charges. Rely- Code qn the cheque being dishonoured
1foresaid transaction on the cilse of Sree Ram v. The State inasmuch as he does not induce the deli-
encashed but ma:n.y ashtra reported in AIR 1961 SC very of any property or the making of
-ured. The .complain.:. = (1961-1 Cri LJ 760), Mr. Ghose any valuable security. It was observed'
l for payment of t~ that the discretion of the M.agis- that a cheque was only a promise to pay
and declined to in framing charges was a judicial either on demand or upon the date to
~oods. Thereupon the r1Ic:l'r<>1'1 and was liable to be set aside which it has been post-dated. Therefore,
Kumar Agoarwalla, superior court. Although the .afore- the only effect of the receipt was an ac-
eated the complain- case of the Supreme Court was de- knowledgment that .a promise to pay has
to allow him a little . under Section 207 {a) in a- pro- been given by means of the cheque. In
;sured full payment ceedings instituted on a police report the R. S. Ratra v. Ganesh, reported in AIR
cheques. On his es- same, he submitted, also applied to the 1940 Lah 93 = (41 Cri W 394) giving of
es would be fully order of a Magistrate made under Sec- a post-dated cheque in lieu of money: due
3d after the 30th of tion 251-A. Mr. Ghosh also referred to with the knowledge that the drawer had
his representation, , the case of ·Rajendra Nath v. The Deputy no funds in the Bank was held not to
ers of the goods were intendent of Police, Purulia report- amount to cheating in the abs~:mce of evi-
3titioners on 16th ·of AIR 1972 SC 470 = (1972 Cri LJ dence to show that the payee parted with
th of March, l~tll which it was held that the issue any property or deed or omitted to do
two cheques, . both nr.nN'"-" is a matter for judicial deter- pnything which he would not have done
.pril, 1971 for Rup~es ,,a~~mlna.tion. It was also held ·that the High or omitted to do if he had known that
1413.30 respectively in exercise of its inherent power the cheques· would be dishonoured. It
by Sri Biswanath . examine whether there is legal evi- was held that the remedy lay in a civil
ques were -presented justifying the conclusion of the court. Another case strongly relied on
1971 for encashm~t court. was Chidamooram Chettiar v Shimmu-
:ed. · Mr. Ghosh stated that the facts gham Pillai reported in AiR. 1938 Mad:
circumstances in this case did not 129 = (39 Cri LJ 261). It was held that
rs that endeavours 'Warrant a charge under Section 420. The a post-dated cheque in payment of goods
:omplainant to cont.act had transaction over a long time. already received is a mere promise to. pay
itioners but it was fact documents including Bank state- on a future date and a broken promise is
ness of Calcutta Cycle would 9how that these started not a criminal offence. Cheat~ is both
y at 80-D, Bentinck 1949 and there was annual turn- deception and dishonest inducement to
> closed and all stocks of more than two lakhs for many do or omit to do something. Mere decep-
In that background, dishonour of tion is not a Criminal offence It was
cheques for amounts aggregating to ~urther held in that case that not every
= circumstances one over Rs. 3000/- could not be said to rmmoral act was criminal. It is an abuse
Regional Sales Mana- amounted to cheating. He led con- of the process of Court to attempt to.
Sales LLrnited filed a nPY'"""''"" emphasis 0fl the fact that create new crime in order to compel men
1971 before the then were postdated ones. He t<: co.nform. to the high standards of· pro-
Magistrate, C-alcutta :fUllJJl.ld<>.l<>eu that delivery of goods on cre- bity m busmess dealings or to force them
1er~. On the said 31st on the basis of post-dated cheques to execute their promises. Mr. Ghosh
learned Chief Presi- not amount to cheating within the then relied on the case of Mahadeo Pro-
directed D.C.D.D. of Section 420-, Indian Penal sad. v. The State of West Bengal, report-
d investigate the He relied on the case of R K. ed m AIR 1954 SC 724 = (1954 <;;ri IJ
tember, 1971 the v. Emperor reported· in (1935) 39 1806) for the proposition that ..wh~ the
before the
)ail. On 31st
VlN 11'82. In that case the complain-
firm sent a bill dated the 1st of July,
charge against the accused- is under . Sec-
1bmitted tion 420 in that he induced the <'omp1a-
==~~~~~'!7,,--~~~~..,..,c ·-.-·~---~-
1~6~! Biswanath v:
inant to part with the goods, on the un-
Sta~~. Basu
in a civil
i) Q
proceedin~ was
Cri.

detstanding that the accused would pay long ago in the case of Kuppuswami
for the same on delivery but he did not The K~ng, reported in AIR 1949 FC 1
pay, if the accused had at the time he (49 Cn LJ 625) and reiterated in Mo
promised to pay cash against delivery an Lal v. The State of Gujarat. reported
intention to do so, the fact that he did AIR 1968 SC 733 = (1968 Cri LJ 876).
·not pay would not convert the transac- the latter case if. was recognised that
tion into one of cheating. The same case judgment or order may be final for
also held that if on the other hand he had purpose and interlocutory for another
no intention whatsoever to pay but final as to part and interlocutory as
merely said that he would do so in order part. However, generally speaking
to induce the complainant to part with Judgment or order which determines
the goods then a case of cheating would principal matter in question is
be established. final. Shelat, J., noted some English
7. The crux of the matter is does cisions where four tests were applied
the failure to provide lunds for the che- determine the question; (1) Was the
que amount to a mere breach of promise made upon an application such that a
giving rise to a civil liability or does it cision _in fayour of either party would
constitute an offence under Section 420, termine the main dispute ? (2) Was
Indian ·Penal Code? An intention of the made upon an application upon which
drawer seems to be an important factor main dispute could have been
in dedding the question. Mr. Ghosh laid (3) Does the order as made determine
streSl? on the large volume of business dispute? (4) If the order in question
between the parties. existing- over years. reversed would the action have to go on ·
That, however, is only the backgrounrl Justice Bachawat, while delivering
The learned Magistrate did not take into separate judgment noted that in a
consideration dishonour of many cheques proceedings the order is final if it
given against delivery. He considered decides the rights of the parties.
the issue of the two cheques dated the does not decide the rights of the
30th April, 1971, under the circumstan- the order is interlocutory though
ces of the case as inducement to supply elusively determines some "uhnrniinoot~>l
the goods. On an analysis of the facts metter and disposes of the
and circumstances it would appear that in which the subordinate matter is
this is not a case of attempting to wipe controversy. He relied 0 n AIR 1920
out the existing liability by post-dated 86 (Firm Rainch.and Manjimal v.
cheque. The learned Magistrate looked G. V. Ratanchand). Generally spe
upon the two cheques as being issued as Osborne puts it in Concise Law
aga~nst delivery of goods with assurance tionary 5th Edition, page 172. while
that these would be honoured on due date order determines the rights of the
and in due course. But for the assurance the interlocutory order leaves so:mE!thjn.!n.;:,
that the cheque would be hon~ured on further to be done to determine
due d·ate the complainant would not de- rights. Wharton's law Dictionary
liver the goods. If the learned Magistrate Edition) states that an interlocutory
took that view of the matter we cannot or judgment is one made or given uuLu•.-•
say at this stage that he had no reason to the progress of an action but which
frame the charges as he did. We, there- not finally dispose of the rights of
fore, do not see any merit on the appli- parties. Mr. Ghosh also conceded
!cation. that an order which did not
8. There is, yet another hurdle in speaking finally set the
rest and kept the action alive is not
Ithe way of Mr.. Ghosh. Section 397 sub-
section (2) of the new Criminal Procedure
'Code specifically provides that the power
Framing of charge after all is
but written formulation of specific
sations made with certainty and coJmrnu.,l
of revision shall not be exercised in re-
lation to any interlocutory order. An nicated to the accused so that he
interlocutory order has not been defined. fend himself. Formulation of the cn.an'"'''
No single general test for finality can be therefore, cannot in any view of the
laid down as final or interlocutory nature ter be said to finally determine the
te'rc in issue. The controversy hahuo~>l'll
of order has to be considered in relation
to the ··particular purpose for which it is the parties is hardly set at rest.
required. The criterion for determina- view of the matter we have no
tion of whether an order in criminal pro- that framing of charge is an
jceecings is fin.al is not different from that order.
- -- \_....---->

Biswanath v. State (S, Basu J~) .Q 1905

tg. That was settled
e of Kupp1 Nami v
Mr. Ghosh further argued that
if it is an interlocutory order the
were decided on the basis W.
minal Procedure Code of 1898. In the
Old Cri-

in AIR 194 FC l ~ ts inherent power under Section 482 old code there was no bar to the exercise
reiterated in Mohan the . Criminal Procedure Code should of revisional powers in case of interlocu-
Gujarat, reported in invoked in this regard. It is not cir- tory order. The imposition of the bar
(1968 Cri LJ 876). In . by the provisions of Section changes the context of use of inherent
as recognised that a He cited several cases of the power of the Court in this respect. It is the
1ay be final for one me Court. In the case of Krishna- inadequacy inherent in the Code which
utory for another or Iyer v. The State of Madras, re- fails to provide for all contingencies which
interlocutory as to in AIR 1954 SC 406 = (1954 Cri has called for the creation of and saving
nerally speaking a 1024) the Supreme Court on the facts the inherent power of the Court to act ex
vhich determines the that case held that the High Court was debito justitiae. The same also explains
question is termed• ed in quashing the charges in the why this inherent power is not to be exer-
.ed some English de- rcise of its inherent power even before cised in matters specially covered by the
!sts were applied to conclusion of the trial. It was how- other provisions of the Code. If such is
m; (1) Was the order . held that further trial in the circum- the nature of the power should it be
ation such that a de- ces of the case would not advance the exerci~ed in fields such as interlocutory
ther party would de- of justice and hence the order of orders which. have been forbidden for the
ispute? (2) Was it High Court directing the trial was use of revisional powers by the Court ?
1tion upon which the ashed. In the case of R. P. Kapoor v. Section 3~7 (2) is a bar which apparently
have been decided ? State of Punjab reported in AIR 1960 fetters the revisional powers of the Cour
made determine the · SC 866 = (1960 Cri LJ 1239) the Sup- only. There is nothing in Section 482,
order in question is Court was of the view that the in- Criminal Procedure Code that it is to be
ction have to go on? herent jurisdiction of the High Court read subject to Section 397 (2). But even
while delivering a could be exercised to quash the proceed- then should the Court, when it is unable
oted that in a civil ings in appropriate case either to prevent to exercise its revisional pawers in case
~ is final if it finally the abuse of the process of any Court or of interlocutory orders, take recourse to
the parties. If it otherwise to secure the ends of justice. It its inherent powers in that field? Indis-
rights of the parties was not possible, desirable or expedient to criminate or frequent use of the inherent
1tory though it con- lay down any inflexible rule which would powers in that fashion would obviously
some subordinate govern the exercise of this inherent juris- render nugatory the bar put by Sectioil
of the proceedings diction. Some of the categories of the 397 (2). It would be doing indirectly what
dina te rna tter is in cases where inherent jurisdiction to quash the Court is directly forbidden to do
ed on AIR 1920 PC proceedings should be exercised were under Section 397 (2). While we would
Manjimal v. Firm given. At the same time it was empha- not like -to fetter or circumscribe the am-
Generally speaking, sised that the inherent power of the High bit of the inherent poWers of this Court
t Concise Law Court under Section 561-A, Criminal which is a mighty reservoir to be drawn'
page 172 while Procedure Code (old) cannot be exercis- upon by the litigants in cases where thej
rights of the n"""TlP'"' ···.· ed in regard to the matters specifically channels of other legal remedies under 1
er leaves .. covered by the other provisions of the the Code are dried up, at the same time it!
:> determine Code. In the case of Delhi Development would be inadvisable to expand its ambif
w Dictionary Authority v. Lila Bhagat. reported in AIR possibly except in rare cases to spheres'
1 interlocutory . 1975 SC 495 = (1975 Cri LJ 325) it was specifically sought to be excluded by the
tade or given · held by the Supreme Court that in an Code. It would be risky to attempt for-
:tion but which appropriate case it may be permissible to mulations of principles to be followed in
of the rights of protect person from illegal vexatious pro- this regard. Circumstances may arise
also conceded secution by granting appropriate rule or where a failure to exercise the inherent
did not in -exercise of the inherent or revisional powers in case of interlocutory orders may
the con+r''"'~rc:v powers of the High Court. In the case of occasion great hardship. To inhibit 0 r
.on alive is not Superintendent and Remembrancer, West carve or deny the Court's power to pro-
after all is · · Bengal v. Mohan Singh, reported in AIR vide remedie, on such occasion may cause
ion of specific .·1975 SC 1002 = (1975 Cri LJ 812) it was injustice for the removal of which alone
r~inty and ~~·~·""-' observed by the Supreme Court that Sec- the Court exists. Supposing an order is
I so that he . tion 561-A preserves the inherent power purported to be passed, for example, by
.ation of the the High Court to make such orders as a Sessions Court erroneously in exercise
ny view of the deems "fit to prevent the abuse of the of its revisional powers in an interlocu-
determine the _,...,.nn.a~- of the Court or to secure the ends tory order (which would be a nullity)
mtroversy The aforesaid cases, no doubt, should this Court refrain from quashing
set at rest. In that in appropriate cases the High that illegality ? .,
we have no can interfere with matters like the
of the charges under its revi- _ 10. TJ.:le result is that the applica-
cr in!wrent powers but those cases tion fails not only on gwunds of merit
1976 Cri. L. J./120 XII
Ram Piare Lal: v. State. (V. D .. MiS.ra,.J~}
but also beeat1Se it cis' an application whicll H. R. Bhardwaa~ rol'~l!m:ior1er:
seeks to invoke this Court's revisional Mehta, for Respondents.
powers on an interlocutory order. As to ORDER:- The petitioner and
the larger question whether the Court other person were charged under
should in a case involving an interlocu- 120-B/420/468/471]46u/471 and
tory order invoke its inherent powers at Indian Penal Code, by a Magistrate
all we have discussed some aspect of the J~ly 4, 1973 and were ordered to be
matter as the point was raised in this m1tted to the Court of Session since
case. But we make it clear that exercise tion 466, Indian Penal Code, was
of the inherent powers is not called for sively triable by a Court of Session
in this case. The Rule is discharged. 0. P. Singla, Additional Sessions i
P. K. CHANDA, J .:- I agree. framed a charge against the pe
Rule discharged. and his co-accused on September 4
and fixed the case for prosecution'
dence from November 5, to N ·
1976 CRI L. J~ 1906 1973. The accused, however,
the order of commitment and
(DELHI HIGH COURT) stay otder. The Additional Sess
VYAS DEV MISRA, J. could not therefore proceed
:Jtam Piare Lal Jogeshwar Munshi, trial. After the Supreme Court
Petitioner v. The State and another, Res- ed the petition of the ac.cused, .
"pondertts. · 24 to January 31, 1975 were fixed·
, Criminal Misc. (Main) No. 66 of 1976, Additional Sessions Judge for
D/- ~.:.5-1976. Now the accused moved
tion and obtained a stay order.
(A) Criminal P. C. (1974), Section 484 was transferred to the Court of
(2) (a) - Amendment of charge after 0. N. Vohra, Additional Sessions
.commencement of trial under repealed from which court it. was
Code when new Code came into force - the court of Mr. T. S. Oberoi, ACldtltoJ:lal
:Trial is nevertheless a pending trial Sessions Judge. On December
within Section 484 (2) (a) and is govern- Mr. Oberoi amended the charges
ted by the repealed Code. (Criminal P. C. framed against the accused by
(1898), Section 271 - Trial when com- charge under Section 120-B read
mences.) Section 420, Indian Penal Code. Now
SeCtion 271 of the repealed Code accused made an application before
ma"kes it clear that the trial commences Oberoi requesting him to transfer
when the accused is produced before the case to the Chief Metropoli~an
Court of Session and the Judge takes trate under Section .228 (1) (a) of the
cogmzance of the case. Once the trial of Criminal Procedure, 1973 on the
commences it will remain pending till it that offence tinder Section 466,
is concluded and any subsequent amend- Penal Code, has been made triable
ment of the charge will not affect it. In court of Magistrate by thiS Code.
the instant case the Court had framed learned Additional Sessions Judge .
charges on t~ appearance of the accus- missed the application by holding .
ed on 4-9-1973, and on the accused plead- the trial had commenced in the .
ing not guilty and claiming to be tried Session before the Code of Criminal
fixed the case for evidence in November, cedure, 1973, came into force on
1973. Simply because the evidence could 1974. The petitioner has
not be recQ.rded for various reasons and Court under Section 482 of the
the trial cou1d not proceed further, does Criminal Procedure, 1973, for the
not mean that the trial had not commenc- fer of the case to the Chief .!"o1001ita:J:r
ed and it was not pending on April 1, Magistrate. .{/o• ·
1974 when the new Code came into force. 2. . Section 484 of the Code· o~ Crt~ :
1974, ·Cri LJ 1341 (Cal) (FB), Foil. minal Procedure, 1973, is the r~peal. ani"
(Paras 4, 5) savings section. The relevant ~rt of ~
Cases Referred: Chronological Paras section reads thus:
(1975) Criminal Revn. Appln. No. 399 of "484 {1) The Code of Criminal
1974, D/- 27-1-1975 (Born) 6 cedure, 1898, is hereby repeale& .
i974 Cri LJ 1341 = 78 Cal WN 929 (FB) {2) NotWithStanding such· ·
7 (a) if, immediately before
on which· this Code comes into
HT/HT/C697 /76/KSB
t•
~--{·
..<
-~.
.l'
.s-1
.: ..
' .• t

144 APEX DECISIONS

2001 Ill AD (Cr.) OHC 144

(DELHI HIGH COURT)
Crl. M. (M)No: 281/2001
1.8.2001
Rajat fVlittal Vs. State & Anrs reside~tial1j
'account clo
... ::,.,··•.:·-'.
(S.K. AGARWAL, J.) was'disho.
Appearances:
Mr. O.K. Gupta Advocate for the Appellant.
Ms. Richa Kapur for State Mr. V. K. Malik Advocate for the Respondent. fl)8d. coun~
·Code of Criminal Procedure- Sees. 173, 210, 482- Indian Penal Code aga·i.nst the cc
Sec. 420- Negotiable Instruments Act- Sec. 138- Petition u/Sec. 482 {Crl. W.660/:
Cr.P .C.- Go~ds supplied- Cheques dishonoured- Complaint u/Sec ..· .of this.·:~•-Court
~t~ ··,.' •. , :•l:

of NIA - FIR with Police whether both can run simultaneously (Yes) mto the c6mr
Petition for quashing FIR. .~~- 10. 0 lac~
Held: A cornplaint was filed in court and FIR was registered by police, by :
YfHed
. ,:. , ....corr
. ,
cannot be the ground for quashing the Fl R. (Para 5)
-Octobe·r -, 2oc
. •' ... I

..•._,vvu; h~ iodg~
I find no merit in the petition and the same is dismissed. (Para 6)
fiR und~·r· Sec
Result: Petition dismissed. that _the pQhve
'1~· ../
-5
.
eomp)ain'f un(
C,:~se Referrecl:- ttoexamine
1. Sagar Suri & Ors. Vs. Stale~ (2000 (2) SCC 636) that the 9Qbve
. '-.· .. -
Gourn
S.K. AGARWAL, J. (ORAL)

This is a petition under Section 482 of the Code of Criminal Procedu·,'"JUom~Ml!~c

quashing of FIR I)Jo. '294/2000 under Section 420, I PC, P .S. Greater Kailash-1.
Delhi.

2. On 14th Octoqer, 2000 f'h RcJlV Modi lodged a report with the
Commissioner of Police. South Dei:-.; c:lieging that he knew the petitioner 138ofthe Negot
be(ore, on the basis of the represe' <ations made by the petitioner that he t recorded sino
Rajat MiltDI Vs. State &Anrs. .145
big orders for supply .of fabricf lroin Dubai, he ha9 supplied goods worth
34,268/- against bills, to the petitioner's firm. For the goods ~upplied, the
issued two cheques, in the sum of Rs.18.0 lacs and Rs.1 0.0 lacs. He
·. topaythe balarice amount wjthin a month and pledged the original title deeds
residential property as security. The said cheques were dishonoured.for the
. 'account closed'. It was further allege_d that, right from the beginning. petitioner's
was dishonest and he. did not intend to make the payment. It is. thus, alleged
e petitioner cheated the complainant. On the basis of above allegations, FIR
registered on 16.11.2000, which is sought to be quashed.

Learr.ed coLJr,:;ei ;or lhe pe~lllvlkl agued that pe!lt1oncr l:ad earlier-lodged .. ,..,.,..~, ..

1
Penal Cod :·:·e·-~~1'1/· · -·_nst t~~ ~.?..f11Riain~.r;ttgr thre.ats given to him on phone:,He also~fil~ara·:Wfi!~~:~~4~-
;n;A~lS~c. 4' · .660/2000); which was disposed of on. 30th July, 2000 by the Divisi9n ·
llaint uJSec. t?fthis Cqurt, _with the directions to the Deputy Commissioner of Police, to
~-~~~~~: :i~to th·e,compiaint. He argued that on the basis of the two cheques of Rs. 18.0
and .Rs.
. ~
10:.0
, ""
Jacs, which were dishonoured, the (respondent No. 2). complainant . . ;

~lr~ady filep complaint under Section 138 of the Negotiable Instruments Act on . .·_ ~
1 police, by
..Octobe·r. 2000, ·which is pending for adjudication and simultaneously on . j ._:~?.) , ~-
.. he lodged above· report with the police, on the basis of which the above·',!,' "'.'·' ·. ',
FIR under Section 420 of the Indian Penal Code was registered. It is, thus,.' '·
i
.·.. t~at the above FIR is an abuse of the process of the law, as the Cour1~,~;aling .: ~ i ,, :; < ·\~1~,:,
. COrt:"Jp_laint under Section 138 of the Negotiable Instruments Act, \:VOUld be ·,' ·
nt to examine whether any offence of cheating is made out or not?·Thus, it is
~i~~~~v._that the above FIR is l~able to be quashed. Reliance is placed on the decision
.-;.~..,.,--=, . preme Court in Sagar Suri & qrs. Vs. Stat~ (2000 (2) SCC 636) .
. .. ~

.,.., ...'" .. ~arned counsel for the State, on the othP.r hand, _?rgued that as per directions
. .Division Bench of this Court in (Crl. Writ N0::660/2000), the complaint of ,.
1

iaLProcedu. er was duly enquired arid allegations made herein were not substantiated. i
er Kaiiash-i: . ''l;;;~~f~···· .. ·.
•·is a~~ued that inv~stfgafrons on th~ complaint lodged by ( n::spo~dent No.
· led that petitioner had issued above-noted two cheques in !he year 2000.
with· account.which was c,iosed two years earlier. In the complaint filed under

e petitioner ·138 of the Negotiable Instruments Act. even the statement of !11e complainant
!.

:::>ner that he t reco.rded since the original cheques were seized by the ;;oiJce. thus.
·...
]. ...... '
·-, -· -· -j_,
-:L
/fr·:;
APEX DECISIONS
146
cggnizance in the complaint has yet not been taken, and_ that abov~ FIR is not lia _..
be quashed. It is a~gued th~t matter has been investigated and challan is readyto
filt::d.

5. ·I ha .;e considered the rival contentions; merely because on the same

(;!r{~. C:Jm[Jiainl W(lS filed in court and FIR was registered by police, by itself ca
;·!

be lt1c ground for quashing the FIR Section 210 of t11e Code of Criminal Proce
lays down the procedure to be followed when there is a complaint case and
investigating on the same facts. It provides that i(a report is made by the inve:3UQ!aur
agency under Section 173 and on such report cognizance of any offence is taken
thr~ fvbgistrale against any person, who is an ~q:;used in the C;mplaint C<;lSe,
tv1agistrat.e shall inquire into and ·try iogether the complaint c~se and the case
disr
v.l! of the police report. as if both the cases were instituted on the police r
~ :;si of the cases. material to .sustain the charge, can be collected only t
u:ves:igation and if. in the meaniime, complainant has chosen to file a com
. under section 138 Negotiable Instrument Act, to save· iimitation or otherwise .
cann()l be the ground for quashing the FIR. registered by the police. Looking int.o
r1.1turr: of allegations here, it cannot be said thai recofdin·g of FIR is an abuse of
of law. The oos.ervalions made by the Supreme Court in Sagar Suri's
j;iOC<::;;s
(Supr0) are not applicable to the facts of this case.

'.b. i ,;r- the foregoing reasons. ! find no merit in the petition and the s
(·

2001111 AD (Cr.) D~C 146

(DaHl HIGH COURl)
Crf.l.il. (M) 4815/2000
17.7.2001
Y · Sh2rma \/s f-..1-'s Surya Fincap Limited
(K S GUPTA, J.)
..
.A.ppc·~· ranees:
Sh. Sirlclarth Luthra, Advocate for the Ai)peilant
·;h 8 L Wali . .l\dvocate for the Respon.jent

- ,.._j"
'34 APEX LJEC!S!ONS 20011 AD (Cr.}

petitioners further contendE:d that the 1mpugned order qua the petitioners is also
violative of the provisions of sub-section (2) of Section <101 Cr.P.C. Learned
law-
counsel for the respondents has fairly conceded tllat the impugned order qua the
word~
petitioners contravenes the mandatory provision of sub-section (2) of Section 401
·.-~;.;:~.: irvesl
.:f<<· - Cr.P.C. Thal being so the learned Additional Sessions Judge l1as con~1111itted a
S.· 15G
:~ rn;.mifcst illcqali!y i11 direc!in~J trial of the petitioners under Section 5061PC. whicl\...4;..
...
· ~;:-~

contrary to the provision of Section 401 (2), CrP.C Consequently. the impugned
beforr:\
staten :1
nrck:r. which has resulted :ri ~rave miscarriage of justice. cannot !)r:_· allowed to sta~d.
Held:·;
3. For the foregoing reasons, the revision is allowed and the impugned order is
police;:
quashed to the extent it directs trial of the petitioners. namely, Or Charu Smita Gupta·
and Jeevesh Sharma for the offence punishable under section 5061PC. 202,df
and aft,·
4. I~( !t:ord or IIH! I ri; II ( \>1 II I I )I ' ~ ;()f1 I tJ; 1<:1<.
two ell;
commo;1
Xll,.deal::
2001 I AD (Cr.) S.C. 34 ; . Section·:~.
_. (SUPREME COURT) "direct at j
CRIMINAL APPEAL NO. 43 OF 2001 is
2o2 dif
11-\rising out of S.L.P.(Crl.) No.2225 of 2000}
(Para 7)
(From the Judgment and Order dated 1.5.2000 But the ~.:
of the Madhya Pradesh High Court in M.Cri.C.No.1409 of 2000)
1 0.1.2001
Suresh Chand Jain Vs. State of Madhya Pradesh & Anr.

U<.T. THOMAS, RP. SETHI, JJ.)

Appearances: .·
R.K. Jain, Sr. Adv., Ajay Jain, Jitendra Jain. and Sushi! Kumar Jain, Advs .• for the
Appellant. · .., ....... ....,,,...,,
Ashok Kumar Singh and Uma Nath Singh, Advs., for the Respondents ...

[Chief Editor's Note: M.M. can direct, before taking cognizance of an

offence, for registration of an F.I.R. and investigation being made into
co,·nplainl filo<ll>dorc it. J

Code of Criminal Procedure, 1973 -Sec. 156(3) - Power of Magistrate to: .

direct registration of (lfl FIR (lnd investigation thereunder_ Recognized in;ases Ref:r;
I.. Gopal u;:
L Ram Na:
Sure::;h ;<
:::-:

Sures/7 Chand Jain Vs. State of Madhya Pradesh & Anr.

. . .. -- . . . ~ ~

_.-_._Eyen if, while directing investigation, the M.M. does not say so in mu~ch
· s,' it. Is the duty of Police Officer to register an F.I.R. first then the -
vestigate Into the offence- The difference between exercise of powers u/
.' 156(3) and 202(1) is that in the former case, direction is inade by M.M.
before taking cognizance of the matter and therefore :1e need not record
-statement of complaint on oat.h, which Is not the position u/S. 292.
~ld:.Chapter XII of the Code contains provisions relatl.ng to "in-formation to the
ice and their powers to investj~ate", whereas Chapter XV, which C<?ntains Secti?n·
2, deals with provisions relating to the steps which a magistr~te has to aqopt whtle
a
dafter taking cognizance of any offence on complaint. Prqvisions of the above
··.tw·1 chapters deal witt-{ two different facets altogether though there could be a
· common factor i.e. complaint filed by a person. Section 156, falling within Chapter
·_XII, deals with powers of the police officers to investigate cogn-iza~(e offences. True;
.Section 202 which falls under Chapter XV,,also refers to the power of a Magistrate to
:~direct an invcs!igntion by a police officer". But tile invcsliQCJtion cnvisaucd in Scclio1 1
202 is different from the investigulion contemplated in Section 156 of the Cocle.
(Para 7)
But the significant point to be noticed is, when a magistrate orders investigation
under Chapter XII he does so before he takes cognizance of the offence. {PClr<l B)
: The position ·is thus clear. Any judicial magistrate, before taking cognizance of the
offence, can order investigation under Section 156(3) of the Code. If tie does so. he.
is ·not to examine the complainant on oath because he was not taking c·ognizance of
a~y offence therein. For the purpose of enabling the police to start investigation it is
open to the magistrate to direct the police toregister an FIR. There is nothing illegal in
doing so. After all registration of an FIR involves only the process of entering the
· substance of the information relating to the commission of the cognizable offence In· a .
.·book kept by·the officer-in-'charge of the pblice station as indicated in Section 154 of ';
. =the Code. Even if a magistrate does not say in so rnany words while <iirecli119
investigation under Section 156(3)of the Code that an FIR should be registered, it is
·_·:the duty of the officer-in-charge of the police station to register the-FIR regarding the
an
_··cognizable offence disclosed by th.e complaint because that police officer could·take
1t0 further steps contemplated in Chapter XII of the Code only thereafter. (ParCJ 10)
Result: Appeal dismissed.

strate to
~nized in Gopal Oas SincH1i <lnd ors. Vs. State of Assam<m(l ;1:'' ,!\;R 1<JG1 SC ~1nfi)
Ram Nara1n Vs. Lokuram {1986 (:37) ~~aJastl1an La'-'' \\.-ccidy 143}.
Sure~h Kumar Vs. State of Haryana {1996 (3) Recent Crim;nal Reports 137)
2001 I AD (~r.).

··.. Narain Vsi Lo

~·: rendered :t)y tr
. Haryana {199E
THOMAS, J.
- 6. The forme
Lc<1ve granted. ·· consideration f(
2. !\complaint vvas forwarded by a magistrate to the police for registering an FIR • the learned Sin
<lnd for conducting investigation. One of the persons arrayed in the complaint as regardjng policE
accused questioned the legality of the above order first in revision before the : in that case.rer.
Sessions Court and then by invoking the inherent' powers of the High Court. Both did .:~ cannot be fapltE
not succeed. This appeal is by the same person contending that the order of the not think it'nece
rnagistrate should 1_1ave been upset in the interest of justice. by a Sin~le Jud<
3. ThP. comrlnint was filed by the second Respondent (Mahesh Patidar) before the ofHaryana) ha-
Chief Judicial Magistrate, Nee much (M.P.) on 12.8.1999 alleging that the appellant ·.·within the conte
~nd his wife Geete1 Devi have committed offence under Section 3 of the Prized Chits case. but could
;·~;-,d Moricy Circulation Scheme (Prohibition) Act and under Section 420 of the Indian . cognizance sta~
Penal Code. The Chief Judicial Magistrate passed an order on 18.8.1999 which is' , his mind with re
extracted below: · · ... : · ·· ' · ;:: Single Judge, at
"Th<! complaint submilled by the complainant has been perused. This ~Before pa
for initiating t1clion agtlinst
<:fHIIfll;,inl l1w; !wen sul>mittocl !Jy tl1e complnint1nt Judicial M<
the accused under Section 3 or the Prizes, Chits and Money Circulation the compl<
Scheme (Prohibition) Act and Section 420 of the fPC. Both the offehces are offen<;e ha:
serious. therefore. the case is required to be investigated by the police. conducfth,
st<~tion. Ncmuch Cant!. under Section 156(3) Cr.P.C .. therefore. the complaint After the r€
subnHtt\~cl by the complainant be sent lo the In-charge. Police Ste1tion Neemuch cases asp
C111tt. wilh lite direction to register F.I.R and initiate investigation. The copy lhe provisic
o( the F.I.R and initiate investigation. The copy of the F.I.R. be sent to this send a cop
Court immediately: Punjab, H<
guidance ...
•L Appellant challenged the said order in a revision before the Sessions Court and
wllt~n the revision was dismissed he moved the High Court under Section 482 of the 7. In our opinio
code of Criminal Procedure (for short 'the Code'). Learned Single Judge of the High Puoj~b and Hary<
Court of Madhya Pradesh took the view that ~·in a private complaint case under contrary to law"pn
Section 156(3) of the Code the magistrate is ~mpowered to order investigation; the relating to "inforr
;11lc!D:llion rn.ldc in the complaint needs tg be investigated in public interest." Ch_apterW. w~ic·
whtch a magistrat1
5. S!1ri RK. Jain, learned senior counsel contended first that a magistrate on
receipt of a complaint should have examined the complainant on oath before a complaint. Prov
0roceeding to any other step. Learned senior counsel adopted the alternative altogether though
. . . . . Section 156- fallir
content1on that the rnagtstrate has no power to dtrect the oo!1ce to reg1ster an FIR. In . . · .
support of !he said contention learned counsel cited tv~o decisions. One is Ram nve::-tlgate cogniz
' also refers to the p
\ : ~
->:·.ll -~- .,--
.'
.

:r~;~~ !- .

I
--·n-:
I.,
!
·;-·

. .. . Suresh Chand Jain Vs_ State of Madhya Piados!J & 1\nr. . ·. 37 -, :j

<:·r· _ · f _ . · •• ~-~-.:. _ • .·. :. --:~-" 1.. :. • . .:.;.- ~
: q:;..:
ril_in Vs. Lokuram {1986 (37) Rajasthan Law Weekly 143} and'the ot11er was
ridered by the Punjab and Haryana High Court in Suresh Kumar Vs. Stat~ of .
_aryana {1996 (3) Recent Criminal Reports 137}. j·
··6:
The former decision of the Rajasthan High Court need not vex our mind as \he
consideration focussed therein was on the scope of Section 202( 1) of the Code c;\nd
1g an FIR · . the learned Single Judge observed therein that a magistrate cannot mal<e C~ny or~er
1plaint as · regarding police investigation without examining U1e complainant on oath. If the facts
efore the · .that case remained one under Section 202(1) of the Code then the observatipn
. Both aid ·cannot be faulted with. That apart, as the point involved in .this case is different we po
jer of the· ·not _think it necessary to examine the said decision. But the other decision rendered
by a Single Judge of the Punjab and Haryana High Court (Suresh KumarVs. State
Haryana) has gone a step further _as he ·held that "the magistrate has no power
•'

)efore the·
appellant . ,within the contemplation of Section 156(3) of the Code_.to ask for registration of the
ized Ch
•. -~ase, but could only refe'r the. ~omplaint to the police for investigation th£: pre- at
the Indian . ce-stage to ~ake the enquiry in the matt~r enabling the mag_istrate to ~tpply·
g which i_s m(nc' with regard to the correctness of the complaint." In that decision lenrned
at
, Single Judge. the end of the judgment, made a direction as follows: .
"Before parting with the judgment. it is observed that often it is round that the
'his
Judicial Magistrates working under the control of this Court many a time upon i. ~ ; .
inst
the complaint~ preferred before them. allegedly showing that a cognizable
lion
orrencc has heen committed by the accused. cliroct the polico to rcuistcr and
are
conduct the investigation in such cases under Section 156(3) of the Cr.P.C.
lice
After the reports are received from the police tile Magistrates dcetl wit11 tllos(!
aint
cases as police challans and conduct the proceedings in the matters against
uch
tt1e provisions of law as discussed above. Hence !11e Rcnistry is clircctcd lo
opy
send a copy of this judguJCnt to all the Judicial Mi.lgi::;lrate~ in lltu ~li.llus ul
this
Punjab. Haryana and Union Territory, Chandigarh, for information and
guidance."
Court and·
; 482 of the . In our opinion, the aforesaid direction given by the learned Single Judge< .!the
, Punjab and Haryana High Court in Suresh Kumar Vs. State of Haryana (sup: 1) is
of the High~­
:ase under contrary to law and cannot be approved. Chapter XII of the Code contains provi: ons
gation; the relating to "information to the police and their powers to investigate", wile ::;as
Chapter XV. which contains Section 202. deals with provisions relating to the: •!ps
t."
which a magistrate has to adopt while and after taking cognizance of any of! en( :on
gistrate on a complaint: Provisions of the above two chapters deal with two different L ets .
1ath before altogether though t11ere could be a common factor i.e. complaint filed by ZJ pc: .on.
alternative: Section 156. falling within Chapter XII. deals with powers of the police officr·' s to
:ran FIR. In' _investigate cognizable offences. True, Section 202 v,rhich falls under ChZJpt<:: XV.
·also refers to the power of a Magistrate to "direct an ;nvestigation hy a rolice off er"
..... :>: l·<.;;.-:. ·~.
. ·;',:",.'3fk:;S: -~~..;:-·~,;': ;~·-~ . .. APEX DECISIONS . 20011 AD (Cr.}
.
. ,,~~,.c..~·.;:~~r-<... ~??,. . . .
::::~..tn;!ffieifhvestigation envisaged in Section 202 is different from the investigation
.~~:?co~lem.plated in Section 156 of the Code. ~ection 156 of the Cod~ reads thus:
· "156. Police officer's power to investigate cognizable cases.- (1) Any officer
in cll<~ruc: ol a pol1ce :;l;~lionlll~Y. witlloutlhe orricr of t:l M<Jgislr<llc. invcslig~te
any cognizable case Wl1ich a Court having jurisdiction over tile local area
within the limits of such station would have power to inquire into or try under
the provisions of Chapter XIII. .
. . . \ .
:--.. " - (2) No rroceedin.g of<> police officer In any such case ,shall at any stag~ be _·
·;_·_.
called in question on the ground that the case was one which suct1 officer was·... ·
not e,nipowered under this Section to investigate. ~, > .;.; \ ·• (--; ··:;?.~ ;.,.
. ·.!"·. ! , .···.: ".. • ·. .-:. __ ";;, · . . ,r.. _,.-~_;--,.f:\-::.~C,:~-~·-1:~~~
. (3) Any Magistrate empowered under Section 190 may order such an _
investigation as above-mentioned."
. 8. The investigation referred to therein is the same investigation the v~
to adoj)ted for it h~3Ve beef) elaborated in Chapter XII of·the Code. Such in .
be .
would start with making the entry in a book to be kept by the officer-in-charge of
_police station, 'of the substance of the information relating to tbe.commissjon:of
cognizable offence. The investigation started thereafter caC, end onl~<~ith the up
report filed by the police as indicated in Section 173 of the Code. The _investigation
contel)lplateu ·;n th~l Chapter can be commenced by the poli_ce even without the
. _ordet of a magistrate. Bu! that does not mean that when a maglstrafe orders ari
· invE?stigatio.n under Section 156(3) it would be a different kind of investigation. Such
·investigation must also end up only with the report contemplated in Se~tion 113 the of
Code. But the significant point to be noticed is, when a magistrate orders investigation ,
under Chapter XII he does so before he takes cognizance of the offence.
~u the M
9. . But a magistrate need not order any such investigation if he proposes to take filed bef<
cognizance of the offence. Once he takes cognizance of the offence he has to uie witn<
the iprocedure envisaged in Chapter XV of the Code. A reading of Section 202(1) ·read ·the
the Code would convince that the investigation referred to therein is o.f lim a Magistra\
disclose·
nature. The magistrate can direct such an ir:westigation to be made either by a
'may' in.
officer or by any other person. Such investigation is only for heloing the magistrate
disclosin~
decide whether or not there is sufficient ground for him to proceed further. This can ' '
compl~ir.ll
discerned from the culminating words in Section 202(1) i.e. or direct an investigation why the t
to be made by a police officer or·by ~uch other persons as he thinks fit, _for the investigat
purpose of deciding whether or not there Is sufficient ground for proceeding". This is other han
because he has already taken cognizance qf the offence disciosed in the COITJP discretion
and the domain of the case would thereafter vest with him. In Tufa Ra1
10. Tl1e positio11 is thus clear. Any judicial magistrate, before taking cog:1izance referring to the·c
the offence, can order investigation under Section 156(3) of the Code. If he does ..that
'
wllen this ,
f
I

'-< '-
--
. . . . .,. . -...~., c{
---~'1· I

,(~~ ~ '

' .·

2001 I AD (Cr.) . Suresh Chand Jain Vs. State of Madhya Pradesh & Anr. 39
he investig3tion he is not to examine the complainant on o-ath because he was not taking cogn1zanc~
!ads thus: ·of any offence therein. For the purpose of enabling the police to start investigation it is
open to the magistrate to direct the police to register an FIR. There is nothing illegal in
\nyofficer
1vestigate doing so. After all registration of an FIR involves only the process of entering the
local area ·.. substance of the information relating to the commission of the cognizable offence in a
-try under · ;Qook kept by the officer-in-charge of the police station as indicated in Section 154 of
_-the Code. Even if a magistrate does not say in so many words whilo cJircclin~J
·stage be 'investigation under Section 156(3) of the Code that ali- FIR should be registered, it is.
,fficer was ··the duty of the officer-in-charge of the police station to register· the FIR regarding the
cognizable offence disclosed by the complaint because that police officor could t;lk(~
such an . further steps contemplated in Chapter XII of tho Code only lhcreoftcr.
11. Though the learned Single Judge of the Punjab and Haryana High Court Ill
1e various ste · Suresh Kumar Vs. State of Haryana (supra) made reference to two decisions·
1ch investiga ·rendered by this Court Gopal Das ·Sindhi and ~rs. Vs. State of Assam and anr ·
r·in-charge of R 1961 SC 986) and Tufa Ram and ors. Vs.' Klshoro Singlli\IH 1077 SC
ommission of. . 2401 )] learned Single Judge fell into error in formulating a legal position which is
JP only with the quite contrary to the dictum laid down by this Court in the afore-cited decisions. In
1e investigation ·Go pal Das Sind hi Vs. State of Assam (supra) a three Judge Bench of this.Co.wt
veri without the -• considered the validity of the course adopted by a judicial magistrate of the 1sl d8SS
trate orders an in ordering the police "to register a case, investigate and if warranted, submit chwge-
~stigation. Such sheet"_ Learned Judges repelled the contention that the magistrate ought to ·have
~ction 173 of the examined the complainant on.oath under Section 200 of the Code. Dealing with the
3rs:investiga .. - .._
..t>., •.a,u contention their Lordships stated thus:
ce. "if the Magistrate had not taken cognizance of the off~ltce pn the complaint . ·
·oposes to t _ filed before him, he was not obliged to examine the co{ripl~!nant on oath and
he has to fol the witnesses present at the.. ti111e of the filing' of the 'complaint. We cannot
· 20 2(1) read the provisions of S.190··lo( mean ·that once a complaint is filed, a.,
3Ction . Magistrate is bouria to take cognizance if lhe facts stated in the complaint'
liS of limi . a disclose the COI)1mission of any offence. We are unable to con~!rue the word
ither by a P0 ·may' in Section _190 to mean ;·must". The reason is obvious A complamt
1e magistrate disclosing cog.nizabfe· offences may well justify a Magistrate in sending the
1er. This ca·n complair.1t, under S. 156{3) to ihe police for investigation. There is no reason
3n investiga why the. time· of;the Magistrate should be wasted when primarily the duty to -
inks fit, to~ investigate in cases involving cognizable offences is wi_lh the poiicc 0:~ !he
1
eeding". other hand, there may be occasions w~;en the Magistrate may cxe<C'sc !lis
,_,...__.,,·._... discretion and take cognizance of a cognizabie offence."
n ..... 1... -.0 1!..,:.-- ,-r-.,,rt -::)flrlr
~-- _: .. ~ .- .. ;
..
;

i; ~-- i~
. . ·· ·- APEX DECISIONS · 20011 AD (Cr.) . . !. . . '.. i .
.· ·.. · . s whic~h:ire~af(::c~:·d "t;~-~ notice of the learneJ Judg~ of the PunJ~b~~nd Haty~ri~ 9~9il~r ~~!~:~:~;( 0

Higti_¢~urt he had formulated a positi_on contra~ to it by stating that "the Magistrate ; ln~ian p:~~~~~,
~,as no, power within the contemplation of Sec~1o~ : 56(3~ of the Code, to. ask f(l '~ ~d . . ; -
_; J.89,istration of the case." It appears that th.e JUdiCial off1cers. ~nder PunJab an · bu~tttedly t.he ·
7
' Har)fana High Court who were, till then. following the correct pos1t1on. were asked ~ · Jhe charg{
. ~ments and Pray
the learned Judge to follow the erroneous position formulated by him in the aforesa·
. ..
J\Jdgment.
.
. . . , , . . '!'" .
. . .. ~ . . .
. ·.·. . . ; .... •· >· ·; . ·•cc: , ' .:. \· --~' . .
1
. lon was filed ag-
t'nst the o lid er datea
. ~ , .. . . . . . . , . .· · ." : · · · . · · · ,. ·' . .
13. In t11c prc~eril case U1e· H1gh Court of Madhya Pra~esh hadn~htly upheld t _ 9~. counted the .
course adopted by the magistrate. Hence w~ dismiss this appeaL·; ~ :!~~j·'~"·:;~;:..,··~: bruary, 1997 ·Obs~
... : bruary, 1997. Ace
ruary; 1997 .the tr
1. 1997. It is t0rthe~
2001 I AD (Cr.) DHC 40
(DELHI HIGH COURT)
1/enged th? order.,
CRIMINAL MISC. (MAIN) NO. 1960/99 luded to cllallenge
26.10.99 ThE? view taken by
Om Prakash Verma Vs. State of Delhi • contr~ry ~the prov
Ithe tnal court did .
(CYRIAC JOSEPH, J.} petition(3.r 0!11 o:·2. ~~
· ·by w~y 6fp~ssing
Appearances: : 1997 contained the
Mr. K.B. Andley, Advocate for the Petitioner. . oner;.But the actual
Mr. H.J.S. Ahluwalia. Advocate for the Respondent. e Trial Court' only
r dated
. ?
1Oth Februa.
. . . .. . . . .. . e IS no ilaw Which , .
Code of Criminal Procedure, 1973- Sec. 482 -_Inherent ~owers ~Sec;_ ge mer~IY.bedus~r~
-Revision- Limitation Act, 1963- Art. 131- Limitation for revision Is eq on 14thJanua'
days- Offence u/S. 420/34 I.P .C.- Order 9n charge framed by trial C~urt .1~97and the 1 ord':r'd·
14th Jan., 1~97- Charge actually frame·d on 10th Feb., 1997- Revis rng the qharge. The '
again.st- Dismissed by ASJ as barred by limi!atlon, counting limitation f d again~t h1m.. Hen~{
14th Jan., 1997 - Revision actually filed only against the order fra ner was entitled t
charge, thus within limitation -Impugned order quashed.
o
refore, the. petition
10 .
w
er w,
°
Result: Petition allowed. 1 .2.1997. If the orde
.. . . .. ~o consequenc t
CYRIAC JOSEPH J. (ORAL} · e a ail. l
. . .. , . . . . . . nee t~·the date o'f the
Thts ts a pet1t1on f1led under Sectton 482 of the Cnm1nal Procedure Code. I~ f the ltmitation Act th
petition tile petitioner challenges the judgment dated 9th April, 1999 of the le~A~mittedly, the rev; . ~
Additional Sessions Judge dismissing CR No. 51/97 titled Qm Prakash Vs. Sta s fro_fT!)Qth Februasto,'
t!Te ground that the revision petit ton was time barred under the Limitation Act. n. there'.~· .. Tryerefo(e,
·d · · ·· fil J , ·· 'IISIO,
S;Ji revts:on petitiOn was I ed by the pe\!tioner herein against an order 1Oth Feb ns udge ought not to f

I . -.
--.· '·····-. '·<
.
·;iAII A di !'" -~_:_ __ ..
2001 Ram Babu Gupta v. State ofU. P. (FB) .3363

eriue by its order dated 21-11-1997 has 2001 CRI. L. J. SS6S

cancelled the transfer order of the petitioner (ALI:AHABAD HIGH COURT)
dated 24-8-1996. Accordingly he has held
that after cancellation of the transfer, the FULL BENCH
petitioner was not entitled to payment of PALOK BASU, R. K. DASH AND
salary for the subsequent period. Learned J. C. GUPTA, JJ.
counsel representing the petitioner has sub- Ram Babu Gupta and another, Petition-
mitted that once the petitioner has joined ers v. State ofU.P. and others. Respondents.
pursuant to the transfer order, the same Crt. Misc. Writ Petn. No. 3672 of 2000,
could not have been cancelled and the only D/- 27-4-2001.
option available to the Board of Revenue was (AJ Criminal P.C. (2 of 1974}, Ss. 156(3),
to pass fresh order of transfer of petitioner. 190- Complaint before Magistrate-
He has also submitted that the ground of CognSzance - Procedure to be followed
cancellation as appears from the record is -On receiving complaint Magistrate has
that the post at Allahabad is stated to be to apply his mind to allegations ther~in
reserved for S.C. S.T. candidates. Accord- -He may at once proceed to tak_e co~­
ing to the learned counsel it may be open to zance or order it to go to poUce station
reserve certain posts out of the total posts for being registered and lnvestigatect -
in the cadre, or certain vacancies out of the Order of Magistrate necessarily has to
total vacancies proposed to be filled in a indicate appUcatlon of mind.
particular selection, but in a cadre consist-
ing of inter district transferabl~ employees. Per Palok Basu, J.- On receiving a com-
reservation of particular post m a particu- plaint, the Magistrate has to apply his mind
lar district cannot be done. to the allegations in the cotllplaint and he
may not at once proceed to take cognizance
3. Having heard learned counsel for the and may order It to go to the police station
petitioner as well as learned Standing Coun- for being registered and investigated. The
sel, I am of the opinion that the question of Magistrate's order must indicate application
validity of the transfer cancellation order of mind. If the Magistrate takes cognizance,
cannot be examined in contempt jurisdic- he proceeds to follow the procedure provided
tion of this Court. It can be examined in a in.Chap. XV of Cr. P.C.
writ petition where alone the cancellation. (Para 17)
order if found illegal, can be quashed and
consequent mandamus can be issued. Per R. K. Dash. J. (Concurring).- Exer-
cise of power under S. 156(3) of the Code by
4. In civil contempt jurisdiction it is only the Magistrate may be Yiewed from another
to be seen whether the order of this Court angle. Direction for further investlga,tion can
dated 20-1-1998 has been complied with by be given even after the investigation .culmi-
passing of order by the Collector of Alla- nates in submitting a report under S, 173.
habad relating to the entitlement of salary To State precisely. the Code enjqins a duty
of the petitioner, Since the Collector has upon officer-in-charge of a Police Station.to
passed an order although slightly beyond register an FIR if the report reveals fOmrms-
the time fixed by the judgment dated 20-1- sion of a cognizable offence. Thereupon, he
1998. and prima facie it cannot be said that shall proceed with the investigation tn such
the Collector while passing that order has mrumer as provided in the Code and on close
in any manner tried to circumvent the judg- of investigation submit a report which may
ment of this Court (as the transfer cancella-
·either be in the nature of 'charge-sheet' or
tion is not by him but by the Board of Rev-
enue), I am of the opinion that no action is 'final report.· If the investigation ends with
called for in this contempt proceedings. This final report, different courses are open to
contempt petition ls accordingly dismissed. the Magistrate. He may either accept the fi-
The notice issued to the opposite party are nal report and close the proceedings or he
hereby discharged. There will be no order may take the view that the said feport Is not
as to costs. • based on complete investigation, in which
case he may in exercise of power conferred
. Petition dismissed. by s. 156(3), direct the police concerned to
make further investigation. The third course
FS/FS/A233/200 1I ABD /DPV./12525/200 1
r 3364 Ram Babu Gupta v. State of U. P. (FB)

open to him is that he in not agreeing with

Cri. L. J.
cia! mind and not in a routine and mechani-
the views of the Investigating Officer, may cal manner.
on scrutiny of the case diary take cognizance (Para 48}
of the offence. (B) Criminal P.C. (2 of 1974}, Ss. 2(d),
(Paras 42, 43) 156(3) and S. 190- Complaint- What
PerJ. C. Gupta, J. (Concurring)- Where is - Application filed before Magistrate
the Magistrate receives a complaint or an stating facts constituting cognizable of-
application which otherwise fulfils the re- fence but making defective prayer - No
quirements of a complaint envisaged by prayer seeking trial of known or unknown
S. 2(d) of Cr. P.C. and the facts alleged accused made - Application will not
therein disclose commission of an offence. cease to be a complaint - Magistrate has
he is not always bound to take cognizance. to take cognizance of same.
This is clear from the use of the words 'may (1993) 30 All Cri C 81, Overruled.
take cognizance' which in the context in (Paras 18, 19)
which they occur in S. 190 of the Code can-
not be equated with 'must take cognizance.' Cases Referred : Chronological Paras
The word 'may' gives a discretion to the Mag- Suresh Chand Jain v. State of M.P., AIR
istrate in the matter. Two courses are open 2001 SC 571 : (2001),2 JT (SC) 81 : 2001
to him. He may either take cognizance un- Cri w 954 : 2001 AIR sew 189
der S. 190 or may forward the complaint to 6, 8, 15, 16, 18, 20
the police under S. 156(3). Cr. P.C. for in- Madhu Bala v. Suresh Kumar, AIR 1997 SC
vestigation. Once he takes cognizance he is 3104: (1997) 35 All Crt C 371 : 1997 Crt
required to embark upon the procedure em- w 3757: 1997 AIR sew 3146 15
bodied in Chap. XV. On the other hand, if Suresh Kumarv. State ofHaryana, (1996) 3
on a reading of complaint he finds that the Rec Cri R 137: (1996} 2 Chand Crt C 452
allegations therein clearly disclose commis- (Punj & Har) 15
sion cf a cognizable offence and forwarding Suraj Mal v. State of U.P., (1993} 30 All Cri
of complaint under S. 156(3}. Cr. P.C. to the C 81 (Overruled) 3, 5, 8
Cr. P.C. to the police for investigation will Gulam Abbas v. State of U .P., AIR 1982 SC
be conducive to justice and valuable time of 2198: (1982) 1 sec 71: 1981 crt w 1835
Magistrate will be saved in inquiring into the 15
matter which was the primary duty of po- Tula Ram v. Kishore Singh, AIR 1977 SC
lice to investigate, he will be justified in 2401 : (1977} 4 sec 459 : 1978 Crt LJ 8
adopting that course as an alternative to 15
take cognizance of the offence himself. An Devarpalli Lakshminarayan Reddy v. V.
order under S. 156(3), Cr. P.C. is in the na- Narayana. AIR 1976 SC 1672 : 1976 All
ture of a reminder or intimation to the po- Cri C 230: 1976 Cri W 1361 15
lice to exercise their full powers of investi- State of Assam v. Abdul Noor, AIR 1970 SC
gation under S. 156(1), Cr. P.C. Such an 1365: 1970 Cri W 1264 15
investigation begins with the collection of AbhinandanJha v. Dinesh Mishra. AIR 1968
evidence and ends with a report or charge- -SC 117: 1968 Crt LJ 97 43
sheet under S. 173. It is obvious that power Gopal Das Sindhi v. State of Assam, AIR
to order investigation under S. 156(3) is dif- 1961 SC 986 : (1961) 2 Cri LJ 39 14, 15
R. R. Chari v. State of U.P.• AIR 1951 SC
ferent from the power to direct investigation
conferred by S. 202(1). The two operate in 207: 1951 Cri W 775 13
distinct spheres at different stages. The Superintendent and Remembrancer of Le-
power under S. 156(3} is exercisable at a gal Affairs, West Bengal v. Abant Kumar,
AIR 1950 Cal 437 13
pre-cognizance stage while the other at post
cognizance stage. Once the Magistrate has Jai Shankar Audichya, for Petitioners; A.
taken cognizance of the offence, it is not G. A., for Respondents.
within his competence to revert back to pre- PALOK BAsu, J. :-The arguments ad-
cognizance stage and invoke S. 156(3). Cr. vanced by parties learned counsel on the
P.C. A great care is, therefore, to be taken import of the provisions contained in S.
by the Magistrate while deciding the course 156(3} read with other relevant provisioqs
to be adopted. That discretion has to be ex- certainly touched great heights but luckily
ercised cautiously with application of judi- the timely ushering of a decision of the Apex
200 I Ram Babu Gupta v. State of U. P. {FB) @ 3365

Court has perforce reduced the controver- cited indicating necessity of passing some
sies raised to a manageable extent. such order as to indicate application of mind
2. It so happened that a Division Bench rather than only say "Register and investi-
(of two of us. P. Basu and Hon.'ble J. C. gate."
Gupta, J.) came across in the petition un- 5. All the matters which came before the
der Art. 226 of the Constitution of India of said Division Bench were clubbed together
Ram Babu Gupta and Pramod Kumar Gupta in a bunch, notices were issued to the n~­
an order dated 5-6-2000 (Annexure-61 spondents. counter-affidavits were called
passed in exercise of powers under S. 156(3). and the proceedings were stayed. Simulta-
Cr. P.C. by the Special Judge Dacoity Af- neously. the matter was referred to a larger
fected Area, Mainpuri directing Station Of- Bench. The reason for the reference was that
fleer to register a case and investigate. The the Division Bench in Suraj Mal (1993 (30)
prayer was that the said order be quashed All Cri C 81) (supra) took the view that where
and respondents-Police Station Alau, an application is moved before a Magistrate
Mainpuri and the informant Ved Prakash requesting only exercise of powers under S.
Dubey be restrained from arresting the P<:- 156(3), Cr. P.C .. it could not be· termed as a
titioners in case Crime No. 900 of 2000, "complaint" within the meaning of S. 2 of
under S. 395 registered there in pursuance Cr. P.C. The relevant portion of the judgment
of the impugned order. in Suraj Mal is quoted below : -
3. Shri J. S. Audichya. learned counsel "a perusal of the application moved by
for the petitioner argued that the applica- respondent No. 2 clearly shows that his
tion of Ved Prakash Dubey requested the grievance before the learned Magistrate was
Magistrate to exercise only his powers un- against the pollee as on being approached
der S. 156(3). Cr. P.C., direct the police to his report was not recorded under S. 154 of
register the F.l.R. and, investigate it. The the Code. After stating the injustice caused
argument proceeded that the Special Judge's to him he prayed before the learned Magis-
order "S.O. Alau ko Nirdesh Diyajata hai ki trate that police be directed to register his
muk.addamma darj kar vivechna karen" case and investigate the same. The conten-
(Translation by Court: "The S.O. is directed tion of the learned counsel for petitioners
to register the case and investigate.") does that the application moved by respondent
not indicate application of mind. there was No. 2 was a complaint thus is not correct.
Ii
no power with the Magistrate to direct the
registration of the case; since there was no
complaint within the meaning of S. 2 of Cr.
As it was not a complaint. there was no oc-
easton for the learned Magistrate to adopt
the procedure provided tinder Chapter XV
j
P.C. the aforesaid order could not have been of the Code."
passed in exercise of the powers under S. 6. The Hon'ble Chief Justice has been · ·~.:·
156(3). Cr. P.C. Reliance was placed on the pleased to refer the matters. before this Full
decision of a Division Bench in Suraj Mal Bench and this is how all these cases are f
(1993) 30All Cri C Bl. up for hearing. Affidavits have in the mean- I
4. In a couple of days twenty petitions time been exchanged between the p¥ties !
came to be filed with more or less similar and learned counsel have filed written ar-
prayers and in each matter it was noticed guments also. Yet another Division Bench
that either the challenge was to the Magis- of Hon'ble P. K. Jain and Hon'ble·Lakshmi
trate exercising powers under S. 156(3). Cr. Bihari, JJ. also referred similar questions
P.C. because there was no proper complaint for consideration by larger Bench. In a crtmi-
or because there was nothing in the order nal revision, Honble S. K. Agarwala, J. ex-
. which showed application of mind by the pressed the view that if the Magistrate deems
Court before directing police station to reg- it necessary. he may require affidavit of the
ister and investigate the case. Every time informant while hearing an application pray-
learned counsel came up with various deci- ing for an order u/S. 156(3), Cr. P.C. Both
sions of this Court as well as other Courts, these matters have also been heard by this
some of single Judge and some of Division Court. After a threadbare discussion on the
Bench on the question of existence or non- issues involved. judgment was reserved on
existence of the power with the Magistrate 27-11-2000 after conclusion of the argu-
to direct the police to register an F.I.R. with ments. But before the matter could bet1isted
the police station. Some decisions also were for delivery of judgment, the decision of the
3366 Ram Babu Gupta v. State of U. P. (FB) Cri. L. J.
Hon'ble Supreme Court dated 10-1-2001 in then investigate. Reference to some of the
Suresh Chand Jain v. State of Madhya observations of Suresh Chand Jain will be
Pradesh was pronounced, since reported in made a little later, suffice it to say here that
(2001) 2 JT (SC) 81 : (AIR 2001 SC 571). now only two points survive for decision in
After getting a copy of the said judgment this Full Bench which may be formulated
through the Registry, the bunch of cases was as follows :-
fixed for further arguments in view of the 1. Should the Magistrate while exercis-
decision in Suresh Chand Jain after which ing powers under S. 156(3). Cr. P.C. be left
the judgment was reserved. to write criptic orders "register and investi-
7. On behalf of the petitioners-Sarva Sri gate," or "register and do the needful" or "he
J. S. Audlchya, Nasiruzzaman, Rajeev has to investigate," or the like? or the Mag-
Sisodia, Dharmendra Singhal. Hasan istrate's order should prima facie indicate
Ahmad. Mohd. Ilyas, Akhileshwar Singh, V. application of mind;
P. Srivastava. Ajay Kumar, Naveen Yadav, 2. Is the observation of the Division
M. C. Chaturvedi, S. C. Dwivedi, V. K. Bench in Suraj Mal (1993 (30) All Crt C 81)
Jaiswal, Km. Sunita Sharma, Kamal Singh (supra) correct when it says that when an
Yadav, Jagdev Singh, Rakesh Prasad, C. K. applicant before a Magistrate prays only for
. Parekh, A. C. Nigam. S. S. Yadav, Tapan registration and investigation of a case, such
Ghosh, Santosh Tripathi, R. K. Srivastava an application will not become "complaint"
and AkhUeshwar Singh have been heard. Sri as defined inS. 2 of the Cr. P.C.?
DUeep Kumar, Sri Viresh Misra, Sri Jagdish 9. It may be pointed out that the provi-
Tewart and Sri Gajendra Pratap have ap- sions of S. 156(3), Cr. P.C. have stood the
peared and assisted the Court as amicus test of time. While the provisions in the sec-
curiae. On behalf of the State of U.P. Sri P. tions or two proceedings sub-sections tn
M. N. Singh, learned Addl. Advocate Gen- Chapter XIII of Cr. P.C. 1898 has undergone
eral and Sri R. P. Dubey, Government Advo- changes by amendments, the afores~:~Jd sub-
cate,. Sri A. K. Dwtvedl, and Sr!. Arvind section (3) remains as enacted in 1898 ex-
Tripathl, Addl. Government Advocates have cept chapter renumbering. The view of
been heard. On behalf of some of the in- Hon'ble Aston and Hon'ble Heaton, JJ. of
formants Sri Hart Naraln Singh, Shrt S. K. Bombay High Court in Emperor v.
Alam, ·srt Rajeev Sharma. Sri J. P. S. Vishwanath Krishna Sathe, Criminal Law
Chauhan, Sri Virendra Singh. Sri Sunil Journal Reports, Vol. IV, page 183 which
Kumar and Sri L. M. Singh, Advocates have appears to be the earliest reported decision
also b~n heard. The arguments advanced on the powers of a Magistrate under S.
by the learned Advocates individually may 156(3), Cr. P.C., 1898. has been expressed
not now be necessarily mentioned for the as under:-
reasons as will emerge from the discussion
to follow. The Court expresses sincere ap- "If it was a cognizable offence, he had
preciation for the valuable arguments power under Cl. 3, S. 156, Crmtnal Proce-
advcanced by the learned counsel. dure Code, and if it was non-cognizable, he
had this power because he was aware that I
8. It may be stated here that the Su- am competent to deal with the charge of kid-
preme Court has in Suresh Chand Jain (AIR napping against accused No. 1....... "
2001 SC 571) harmonlsed sub-sections (1),
(2) and (3) of S. 156 of the Cr. P.C. with the 10. But another Dlvlslon Bench of
provisions contained in Ss. 154 and 155, Hon'ble West and Hon'ble Btrdwood, JJ. of
Cr. P.C. Major part of the controversy raised Bombay High Court took a somewhat dif-
in the instant bunch of petitions has been ferent view in re : Jankidar Guru Sltaram,
thus settled in Suresh Chand Jain in that ILR Bombay Series, Vol. XIL, 161 whi~h ts
the Magistrate has power to direct registra- quoted below :-
tion of the case at the police station in the "Section 155 is conversant only with the
relevant diary and direct investigation. It powers of police officers ........ It is not a
stands further laid down that even if the proper course for a Magistrate, when a com-
Magistrate does not expressly direct regis- plaint is made before him of an offence of
tration ofthe case but asks investigation to which he has taken cognizance, to refer th~
be done by the police, the said order inheres complainant to a police officer. He is bound,
in it the direction to register the case and when the circumstances giving him jwis-
2001 Ram Babu Gupta v. State of U. P. (FB) 3367
diction exist. to receive the complaint. and report u/S. 202. When the Magistrate.ap-
deal with it according to law. A different plies his mind not for the purpose of pro-
course would foster abuses. and defeat the ceeding under the subsequent sections of
purpose of the law, which is to give to per- this chapter but for taking action of some
sons. who have been injured. an access to other kind, e.g. ordering investigation u/S.
justice independent of the police. The Mag- 156(3). or issuing a search warrant for the
istrate. therefore, will take examination of purpose of the investigation he cannot be
the complainant. and proceed thereon ac- said to have taken cognizance of the offence.~
cording to law.~ 14.. In Gopal Das Sindhi v. State of As-
11. It may be noted here that the ex- sam, AIR 1961 SC 986 it has been observed
pression and the language existing in S. 155 (para 7) :-
of Cr. P.C., 1882 were the same as in "The provisions of S. 190 do not mean
S. 156(3), Cr. P.C. of 1898. which is.against that once a complaint is filed, a Magistrate
the same as is now found inS. 156(3). Cr. is bound to take cognizance if the facts
P.C. of 1973. stated in the complaint disclose the com-
12. Except the aforesaid two and a very mission of any offence. The word 'may' in
few more decisions of pre-independence era. reason is obvious. A complaint disclosing
the Criminal Digests are silent till 1950 cognizable offences may well justify the
about any Division Bench decision raising Magistrate in sending the complaint, under
the issue of exercising of powers by Magis- S. 156(3) to the police for investigation. There
trate under S. 156(3). Cr. P.C. It can, there- is no reason why the time of the Magistrate
fore. legitimately be presumed that the field should be wasted when primarily the duty
of exercising power by requiring registration to investigate in cases involving cognizable
of a case and investigation by the poltce on offences is with the police. On the other hand i
the one hand, and, Magistrate's jurisdiction there may be occasions when the Magistrate
to entertain a complaint even where the po· may exercise his discretion and take cogni- I
11ce did not register the case for investlga- zance of a cognizable offence. If he does so l
I
tton on the other, were well operating inde- then he would have to proceed in the man- I

pendent of each other. The provisions of

S. 190, Cr. P.C. for taking cognizance of a
ner provided by Chapter XVI of the Code." Ij: .
When a Magistrate applies his mind not for
case as a complaint case were not mixed up the purpose of proceeding under the vari- I I

with matters/offences of grave implications ous sections of Chapter XVI but for taking
or complexity of facts requiring exercise of action of some other kind, e.g. ordering in-
Magistrate's powers under S. 156(3), Cr. P.C. vestigation under S. 156(S) or issuing a
even before taking cognizance on the corn- search warrant for the purpose of investi-
plaint. gation, he cannot be said to have taken cog-
13. Coming now to noticing some deci- nizance of any offence."
sions of the Apex Court, the first case US. Various observations of the Hon'ble
wherein reference to S. 156{3). Cr. P.C. ex-
ists is R R. Chart v. State ofU.P., AIR 1951
Supreme Court highlighting one or other
aspect inherent in Ss. 154, 155 and 190,
1
SC 207. The view of Calcutta High Court in
Abani Kumar, AIR 1950 Cal 437 has been
quoted with approval which paragraph is
200. 202, Cr. P.C. exist in several other cases
such as State of Assam v. Abdul Noor, AIR l
reproduced below (para 7) :-
"What is taking cognizance has not been
1970 SC 1365, Devarpall1 Lakshmi-narayan
Reddy, 1976 All Crt C 230: (AIR 1976 SC
1672); Tula Ram v. Klshore Singh (1977) 4
I
defined in the Cr. P.C. and I have no desire sec 459 : (AIR 1977 sc 2401); Gulam Abbas
to attempt to define it. It seems to me clear v. State ofU.P., 1982 (1) SCC 71: (AIR 1982
however, that before 1t can be said that any SC 2198); Madhu Bala v. Suresh Kumar,
Magistrate has taken cognizance of any of- ACC (1997} 35 All Crt C 371: (AIR 1997 SC
fence u/S. 190(l)(a), Cr. P.C. he must not 3104). This Court is refraining from refer-
only have applied his mind to the contents ring to those decisions in detail for the rea-
of the petition but he must have done so for son that in Suresh Chand Jain (AIR 2001
the purpose of proceeding. in a particular SC 571) (supra), the decision in Gopaldas
way as indicated in the subsequent provi- Sindhi (supra) has been quoted with ap-
sions of this chapter, proceeding u/S. 200 proval. Tula Ram's case (supra) ha~ also
and thereafter sending it for inquiry and been referred to as reiterating the legal po-
L

3368 Ram Babu Gupta v. State of U. P. (FB) Cri. L. J.

sition as interpreted in Gopal Das Sindhi and the witnesses present at the time of the
(AIR 1961 SC 986). The two paragraphs from filing of the complaint. We cannot read the
Suresh Chand Jain may be usefully quoted provisions of S. 190 to mean that once a
now (paras 10, 11 and 12) :- complaint is filed. a Magistrate is bound to
"The position is thus clear. Any judicial take cognizance if the facts stated in the
Magistrate, before taking cognizance of the complaint disclose the commission of any
offence. can order investigation under offence. We are unable to construe the word
S. 156(3) of the Code. If he does so. he is 'may' inS. 190 to mean 'must.· The reason
not to examine the complainant on oath be- is obvious. A complaint disclosing cogniza-
cause he was not taking cognizance of any ble offences may well justify a Magistrate in
offence therein. For the purpose of enabling sending the complaint. under S. 156(3) to
the police to start investigation it is open to the police for investigation. There is no rea-
the Magistrate to direct the police to regis- son why the time of the Magistrate should
ter First Information Report. There is noth- be wasted when primarily the duty to inves-
tigate in cases involving cognizable offences
ing illegal in doing so. After all registration
is with the police. On the other hand. there
of First Information Report involves only the
may be occasions when the Magistrate may
process of entering the substance of the in- exercise his discretion and take cognizance
formation relating to the commission of the of a cognizable offence.
cognizable offence in a book kept by the of-
ficer-in-charge of the police station as indi- "In Tula Ram v. Kishore Singh (supra) a
cated in S. 154 of the Code. Even if a Magis- two-Judges Bench of this Court, after re-
ferring to the earlier decision, reiterated the
trate does not say in so many words while
same legal position. It is unfortunate that
directing investigation under S. 156(3) of the
when this Court laid down the legal posi-
Code that First Information Report should tion so explicitly in the above two decisions
be n:gistered, it is the duty of the officer--in- which reached the notice of the learned
charge of the police station to register the Judge of the Punjab and Haryana High
FIR regarding the cognizable offence dis- Court he had formulated a position contrary
closed by the complaint because that police to it by stating that "the Magistrate has no
officer could take further steps contemplated power within the contemplation ofS. 156(3)
in Chapter XII of the Code only thereafter. of the Code, to ask for registration of the
"Though the learned single Judge of the case." It appears that the j\;ldicial officers
Punjab and Haryana High Court in Suresh under Punjab and Haryana High Court who
Kumarv. State ofHaryana (1996 (3) Rec Cri were. till then. following the correct posi-
R 137) (supra) made reference to two deci- tion. were asked by the learned Judge to
sions rendered by this Court (Gopal Das follow the erroneous position formulated by
Sindhi v. State of Assam, AIR 1961 SC 986 him in the aforesaid judgment." ..
and Tula Ram v. Kishore Singh, AIR 1977 16. Having thus noticed the observations
SC 2401learned single Judge fell into error aforesaid in Sur-esh Chand Jain (AIR 200 I
in formulating a legal position which is quite SC 571). it may be desirable to revert to the
contrary to the dictum laid down by this facts in Suresh Chand Jain. The Magistrate
Court in the afore cited decisions. In Gopal in that case received a complaint submitted
Das Sindhi v. State of Assam (supra) a three- by the complainant and expressed his opin-
Judges Bench of this Court considered the ion that from the allegations therein, seri-
validity qf the course adopted by a Judicial ous offences were disclosed and the com-
Magistrate of the Ist Class in ordering the plaint was required to be investigated by the
police "to register a case, investigate and if police and thus forwarded it to the police
warranted, submit charge-sheet." Learned station with the direction to register the FIR
Judges repelled the contention that the and initiate investigation and called a copy
Magistrate ought to have examined the com- of the FIR immediately on registration ofthe
plainant on oath under S. 200 of the Code. case.
Dealing with the said contention their Lord- 17. In view of the aforesaid discussion
ships stated thus : "If the Magistrate had on the legal provisions and decisions ofJhe
not taken cognizance of the offence on the Supreme Court as on date, it is hereby held
complaint filed before him, he was nat that on receiving a complaint. the Magis-
obliged to examine the complainant on oath trate has to appiy his mind to the allega-
2001 Ram Babu Gupta v. State of U. P. (FB) 3369

tions in the complaint upon which he may fined to the decision in Suraj Mal. The sec-
not at once proceed to take cognizance and ond point formulated above stands also an-
may order it to go to the police station for swered thus.
being registered and investigated._I_he Ma~ 20. Having noticed the relevant pro-
istrate's order must indica a lication of nouncements from oldest to the latest one
min . e agistrate takes cognizance, e in Suresh Chand Jain (AIR 2001 SC 571)
proceeds to follow the procedure provided (supra), the legal position stands fully ex-
in Chapter XV Qf Cr. P.C. The first question plained above and no other point remains
stands answered thus. to be decided. It is heartening to observe that
18. Coming to the second question noted now the Courts have before them distinct
above it is to be at once stated that a provi- guidelines for proceeding ~cording to law
sion empowering a Court to act in a par- and hopefully there will be no occasion to
ticular manner and a provision creating a refer to any supposed legal ambiguity.
right for an aggrieved person to approach a 21. It will be seen that most of the or-
Court or authority, must be understood dis- ders of the Magistrates or Courts, as the case
tinctively and should not be mixed up. While may be, are quite in accord with the afore-
Ss. 154, 155, sub-sections (1) and (2) of S. said legal principles. Conclusions are backed
156, Cr. P.C. confer right on an aggrieved up by reasons. But the stranger part is that
person to reach the police. S. 156(3) em- in some of the matters wherein the Magis-
powers a Magistrate to act in a particular trates have passed cryptic and wrong or-
manner in a given situation. Therefore, it isl ders, police has, on investigation, filed
not possible to hold that where a bare apt charge-sheets. In some, where the Magis-
plication is moved before Court only prayf trate's order was wrong, the police on in-
ing for exercise of powers under S. 156(3)\~ vestigation has found that allegations are
Cr. P.C .. it wiil remain an application onlY!. apparently false or wrong and have filed fi-
and would not be in the nature of a com~ nal reports. Therefore, in the case where the
plaint. It has been noted above that th~ orders may not have been strictly in accord-
Magistrate has to always apply his mind on ance with law, the police has completed in-
the allegations in the complaint where he vestigation and have filed either charge-
may use his powers under S. 156(3), Cr. P.C. sheet or final reports. Consequently, taking
In this connection it may be immediately: note of thus settled legal principles, all the
added that where in an application, a com cases listed together in the bunch are being
plainant states facts which constitute cog decided individually as under : -
nizable offence but makes a defective prayer, Criminal Misc. Writ Petition Nos. :
such an application will not cease to be a
complaint nor can the Magistrate refuse to 3672 of 2000, Ram Babu Gupta and an-
treat it as a complaint even though there be other v. State of U.P. and others
no prayer seeking trial of the known or un- . 3533 of2000, Mohd. Anees and others v.
known accused. The Magistrate has to deal State of U.P. and others
with such facts as constitute cognizable of- 3610 of2000, Pavitra and others v. State
fence and for all practical purposes even of U.P. and others
such an application would be a complaint. 4109 of2000, Mahipal Singh alias Megha
This Court can do no better than refer to Singh and anotherv. State ofO.P. and an-
the following observations in Suresh Chand other
Jain (AIR2001 SC 571) (supra) (para 10) :-
4110 of2000, Parmeshwar Singh v. State
-rhe position is thus clear. Any judicial
Magistrate, before taking cognizance of the 4560 of 2000, Ram Chandra Shukla and
offence, can order investigation under S. another v. State of U .P. and another.
156(3} of the Code ..... could take further 22. In these cases charge-sheets have
steps contemplated in Chapter XII of the already been filed rendering these
Code only thereafter." infructuous. The stay orders have already
been vacated on an earlier date. All these
19. In view of the aforesaid discussion, petitions are thus dismissed.
the observations in the two paragraphs
noted above in Suraj Mal (supra). cannot be Criminal Misc. Writ Petitions Nos.,.:
said to be laying down correct law, there- 3626 of2000, M. K. Saini v. State ofU.P.
fore, those observations shali remain con- and others
3370 Ram Babu Gupta v. State ofU. P. (FB) Crt. L. J.
4350 of2000, Vlrendra Kumar Gupta and others
others v. State of U.P. and others 28. The order dated 31-1-2000 passed
4462 of2000, Satyandra Kumar and oth- by the Magistrate indicates application of
ers v. State of U.P. and others mind through which registration of the case
4010 of 2000, Ghulam Nabi and others and investigation was directed. The writ
v. State ofU.P. and others. petition is, therefore, dismissed. Stay order
23. In these cases fmal reports have been is vacated.
ffied, consequently all these petitions have Criminal Misc. Writ Petition No. 4392 of
become infructuous and they are accord- 2000, Mahesh KumarPawarv. StateofU.P.
ingly dismissed. Interim stay orders stand and others
vacated. 29. The Magistrate called for a report
Criminal Misc. Writ Petition No. 3788 of from the police and thereafter directed reg-
2000, Shahid Ali Siddiqui v. State of U .P. istration of the case. There is no error in the
and others. order. The _writ petition is consequently dis-
missed~ Stay order is vacated.
24. The informant's application con-
tained necessary facts which prima facie Criminal Misc. Writ Petition No. 4393 of
disclosed cognizable offences. The order of 2000, Smt. Saroj and others v. State ofU.P. ·
the Magistrate is a reasoned one. The peti- and others
tion Is. dismissed and tnterliJl stay order is SO. The order dated 22-6-2000 is a de-
vacated. tailed and reasoned order. There is no error
Criminal Misc. Wnt Petition No. 4227 of in the order. The writ petition is, therefore,
2000, Smt. K1ran Devt and another v. State dismissed. Stay order is vacated.
of J,J.P. and others. Criminal Misc. Writ Petition No. 4402 of
28. On the appltcation of the informant, 2000, Smt. Saroj Devi and others v. State of
the Magistrate has by a reasoned order dated U. P. and others
24·5-2000, directed Investigation to be made 31. The case was a registered as non-
by the police after registering the case. There cognizable case. Objections were taken to
Is no error ln the order. The accused have the Court. By the impugned order rlated 16-
gone in revtston against the Magistrate's 5-2000 the Judicial Magistrate directed reg-
o~er before the Session's Judge, Kanpur istration of the case and investigation. There
Nagar and simultaneously have preferred Is no error In the order. The writ petition is
this writ petition which Is not permissible dismissed. Stay order Is vacated.
under the law and obtained stay orders in Criminal Misc. Wrtt Pettt.lon No. 4484 of
both the remedies.· This petition ts, there- 2000, Ganga Ram and others v. State ofU.P.
fore, dismissed. The stay order is vacated. and others
The interim stay order passed by the Ses-
32. The order dated 14-5-2000 is a de-
sions Judge, Kanpur Nagar is also vacated.
tailed and reasoned order. There is no error
Criminal Misc. Writ Petition No. 4228 of in the order. The writ petition is conse-
2000, Arvesh and others v. State ofU.P. and quently dismissed. Stay order is vacated.
others. Criminal Misc. Writ Petition No. 4514 of
28. There is no error in the order of the 2000, Abdul Salam v. State ofU.P. and oth-
Magistrate which ts a reasoned one. The writ ers
petition is consequently dismissed. Stay or- 33. The Magistrate by order dated 22~3-
der is vacated. 1999 had prayer of the respondents to di·
. Criminal Misc. WI1t Petition No. 4277 of rect investigation under S. 156(3), Cr. P.C .
.2000, Dori Lal v. State ofU.P. and others By the subsequen.t order dated 15-7-2000
27. Before passing the impugned order he reviewed his order and directed registra-
dated 8-7-2000 the Magistrate called for a tion of the case. The allegations prima facie
report from the police and thereafter directed show long standing civil dispute between the
registration of the case. There is no error in parties. The subsequent order is passed on
the: order. The writ petition is dismissed. Stay materials. There is no error in the order. The
order ts vacated. writ petition is, therefore, dismissed. Stay
Criminal Misc. Writ Petition No. 4387 of order is vacated.
2000, Amar Singh and others v. S. P. and Criminal Misc. Writ Petition ~o. 4'587 of
2001 Ram Babu Gupta v. State of U. P. (FB) 3371
2000, Jhartug Yadav and 'Others v. State of work efficiently. impartially and uninfluenc-
U. P. and others ed by any outside agency however, power-
34. Registration of the case was directed ful it may be. For an orderly society. impor-
after obtaining report from the police sta- tance of the police cannot be denied. But
tion concerned. There is no error in the or- there have been serious comments on their
der. The writ petition is dismissed. Stay or- functioning and their impartiality has been
der is vacated. doubted, as because they are not independ-
Criminal Misc. Writ Petition No. 5143 of ent and are under the surveillance and con-
2000, Virendra and others v. State of U.P. trol of the Executive. It is very often com-
and others. plained that when a person having suffered
at the hands of others goes to the police to
35. The order of the Court is a reasoned ventilate his grievance and to bring the of-
one. There is no error in the order. The writ fenders to book, he is not treated with hu-
petition is consequently dismissed. Stay or- man touch and his report is not accepted.
der is vacated. Apathy shown by the police leads to distrust
Criminal Misc. Writ Petition No. 5442 of and ultimately the person aggrieved looses
2000, Santosh Kumar Tripathi v. State of self-control as a result, he adopts retalia-
U.P. and others tory measure and takes law into his own
36. The order of the Chief Judicial Mag- hand in punishing the culprit. This leads to
istrate was based on the report obtained social chaos.
from the police station concerned. There is 42. Duties of police and their power to
no error in the order. investigate are enumerated in Chapter XII
37. The writ petition is dismissed. Stay of the Code under caption "information to
order is vacated. the police and their powers to investigate."
Criminal Revision No. 1466 of 2000, So when a •report, either on oral or written
Dlnesh Chandra and others v. State ofU.P. made to the officer-in-charge of a Police Sta-
38. The order dated 2-7-1997 is a rea- tion discloses commission of a cognizable
soned one. There is no error in the order. offence, it ts obligatory of him to register a
case and proceed with the investigation. In
39. The revision is dismissed. Stay or- the event, he refuses to receive the report
der is vacated. and shows indifference to perform statutory
R. K. DASH, J. : - 40. I have had the duties, the only alternative course available
advantage of reading the judgment of to the aggrieved person is to approach the
Hon'ble Palok Basu, J. Since the question Court of law. He makes a complaint giving
raised in this case Is of some importance, it detail narration of the incident terming it
may be helpful if I explain the views that I either a petition under S. 156(3) of the Code
have taken to reach the conclusion. Though or a regular complaint. On receiving of such
no specific question was formulated by the complaint, different courses are open to the
Division Bench while referring the matter Magistrate he may with the aid of power
to larger Bench. however, in course of hear- conferred by S. 156(3) direct the police to
ing I find that the moot question for consid- register a case and investigate in the man-
eration is about the scope and ambit of ner as provided in Chapter XII or he may
power of the Magistrate under S. 156(3) of treat the same as a complaint and proceed
the Code of Criminal Procedure (in short "the in the manner contemplated in Chapter XV
Code"). Before start with. I would like to of the Code. While resorting to the first mode
observe that I fully endorse the views and inasmuch as directing the police for inves-
ultimate conclusion arrived at by Hon'ble tigation he should not pass order in a rou-
Palok Bau, J. tine manner. He should apply his judicial
41. Crime detection and the adjudica- mind and on a glimpse of the complaint. if
tion are two inseparable wings of jusiice he is prima facie of the view that allegations
delivery system. While crime detection Is made therein constituted commission of a
exclusive function of the police, judiciary is cognizable offence requiring thorough inves-
the final arbiter of the guilt or otherwise. of tigation, he may direct the police to perform
the person charged with the offence. To sus- their statutory duties as envisaged in law.
tain the faith of people in the efficacy of the On the other hand, if he adopts the sec~nd
whole system investigative agency should mode in terms of Chapter XV. his decision
3372 Ram Babu Gupta v. State of U. P. (FB)
@ Cri. L. J.
cannot be faulted with for not acceding to like to add a few words of mine.
the request of the complainant for an inves- 46. Section 156(3) of the Code of Crimi-
tigation by the police. li_owever~ it is always nal Procedure occurs in Chapter XII under
to be kept in mind that it is the primary duty
I of the police to investigate in cases involv-
ing cognizable offences and aggrieved per-
the caption. "Information to the police and
their powers to investigate." Section 156 of
the Code of 1973 reads as under :
son cannot be forced to proceed in the man-
ner provided by Chapter XV and to produce 156. Police Officer's power to investigate
cognizable case :-
his witnesses at his cost to bring home the
charge to the accused. It i~ the duty of the "(1) Any officer-in-charge of police sta-
State to provide safeguards to the life and tion may, without the order of a Magistrate,
property of a citizen. If any intrusion is made investigate any cognizable case which a
by an offender. it is for the State to set the Court havingjurisdidion over the local area
law into motion and come to the aid of the within the limits of such station would have
person aggrieved. power to inquire into or try under the provi-
43. Exercise of power under S. 156{3) of sions of Chapter XIII.
the Code by the Magistrate may be viewed (2) No proceeding of a police officer in
from another angle. Direction for further any such case shall at any stage be called
investigation can be given even after the in- in question on the ground that the case was
vestigation culminates in submitting a re- one which such officer was not empowered
port under S. 173. To state precisely, the under this section to investigate.
Code enjoins a duty upon officer-in-charge (3) Any Magistrate empowered under S.
of a Police Station to register in FIR if the 190 may order such an investigation as
report reveals commission of a cognizable above mentioned."
offence. Thereupon, he shall proceed with 47. Thus the provision is substantially
the investigation in such manner as provided the same asS. 156 of the old Code, 1898
in the Code and on close of investigation excepting that in sub-section (1) for the word
submit a report which may either be in the "Chapter XV" relating to the place of inquiry
nature of 'charge-sheet' or 'final report.' If or trial the words "Chapter XIII" have been
the investigation ends with final report. dif- substituted.
ferent courses are open to the Magistrate. 48. It is clear from the scheme of Chap-
He may either accept the final report and ter XII of the Code that it is obligatory upon
close the proceedings or he may take the the police to investigate cognizable offence

'
view that the said report is not based on and book the offende...~. if any. Therefore,
complete investigation, in which case he may where the police fails in its duty to register
\ in exercise of power conferred by S. 156(3), and investigate a cogrtizable offence, the
direct the police concerned to make further aggrieved person may complain to the con-
investigation. The third course open to him cerned Magistrate. Where the Magistrate
is that he in not agreeing with the views of receives a complaint or an application which
the Investigating Officer, may on scrutiny of otherwise fulfils the requirements of a com-
the case diary take cognizance of the offence plaint envisaged by S. 2(d) of Cr. P.C. and
(See AIR 1968 SC 117; Abhinandan Jha the facts alleged therein disclose commis-
v.Dinesh Mishra). These are, in essence, the sion of an offence, he is not always bound
scope and ambit of power of the Magistrate to take cognizance. This is clear from the
under S. 156(3) of the Code. use of the words 'may take cognizance' which
J. C. GUPTA, J. :-44. I have had the in the context in which they occur in S. 190
pleasure of going through the judgments of of the Code cannot be equated with 'must
my learned brothers Hon'ble Palok Basu and take cognizance.' The word 'may' gives a dis-
Hon'ble Ratnakar Dash, JJ. cretion to the Magistrate in the matter. Two
45. At the outset I may state that I am in courses are op~to him. He may either take
full agreement with the order of Hon'ble cognizance under S. 190 or may forward the
Palok Basu, J. disposing of the writ peti- complaint to the police under S. 156(3), Cr.
tions referred to this Full Bench. I further P.C. for investigation. Once he takes cogni-
concur with the reasonings aptly advanced zance he is required to embark upon1 the
by brother Palok Basu, J. while dealing with procedure embodied in Chapter XV. Ori the
the matter in controversy. I will, however, other hand, if on a reading of complaint he
2001 Punni Ram v. State 3373

finds that the allegations therein clearly dis- had demanded money from complainant
close commission of a cognizable offence and to record statement of his witness in a
fOiwarding of complaint under S. 156{3). Cr. case filed by complainant against a shop-
P.C. to the Cr. P.C. to the police for investi- keeper- Trap was set up- Statement of
gation will be conducive to justice and valu- complainant that accused came to his
able time of Magistrate will be saved in in- house on bicycle and took money- Con-
quiring into the matter which was the pri- tradicted by his own panch witness who
mary duty of police to investigate, he will be stated that complainant himself went to
justified in adopting that course as an al- police station and brought accused on his
ternative to take cognizance of the offence bike and money was thrust into his pocket
himself. An order under S. 156{3), Cr. P.C. when he denied to take it - It corrobo-
is in the nature of a reminder or intimation rates defence plea to same effect - De-
to the police to exercise their full powers of fence 5tory appears plausible and accused
investigation under S. 156{1), Cr. P.C. Such was made victim to complainant grudge
an investigation begins with the collection against him- Conviction of accused set
of evidence and ends with a report or charge- aside.
sheet under S. 173. It is obvious that power (Para 15)
to order investigation under S. 156{3) is dif- Sandeep Sethi with A. Q. Butt, for Appel-
ferent from the power to direct investigation lant: U. L. Watwani, for Respondent.
conferred by S. 202{1). The two operate in
JUDGMENT:-CriminalAppealNo. 181/
distinct spheres at different stages. The
1993 seeks to challenge the Judgment and
power under S. 156{3) is exercisable at a
Order of the learned Special Judge in C.C.
pre-cognizance stage while the other at post-
No. 1 7 I 1987 whereby the learned Special·
cognizance stage. Once the Magistrate has Judge by his Order dated 29-10-1993 held
taken cognizance of the offence, it is not the appellant guilty and convicted him un-
within his competence to revert back to pre- der Section 16l,I.P.C. and Section 5{2) read
cognizance stage and invokeS. 156(3), Cr. with Section 5{l)(d) of the Prevention of
P.C. A great care is, therefore, to be taken Corruption Act, 194 7 and further by a sepa-
by the Magistrate while deciding the course
rate Order sentenced the appellant to un-
to be adopted. That discretion has to be ex-
dergo RI for one year with a fine of Rs. 500 I
ercised cautiously with application of judi- -under Section 161, I.P.C. and in default of
cial mind and not in a routine and mechani- payment of fine to undergo further S.I. for 15
cal manner. days; to undergo R.I. for one year with a fine
49. With these added words, I entirely of Rs. 1.0001- under Section 5(2) read with
agree with the judgment of Hon'ble Palok Section 5{l)(d) of the Prevention of Corrup-
Basu, J. and have no comments to make on tion Act, 1947 and in default of payment of
the ob~ervations made by brother Hon'b!e fine to undergo further S.l. for 30 days. Both
Ratnakar Dash, J. in a separate but con- the sentences were undirected to run con-
currtngjudgment. currently.
Order accordingly. 2. Brief facts of the case, as noted by the
learned Special Judge, are that "on 30th
July, 1985 Kuldeep Verma Slo. late Shri
2001 CRI. L. J. 3373 Laxman Dass, r/o B-7. Extension 4,
(DELHI HIGH COURT) Safdaijang Enclave, New Delhi reported in
the Anti-Corruption Branch, Delhi that in
R. S. SODHI, J.
June, 1985 Mrs. Veera his wife had pur-
Punnl Ram, Appellant v. The State, Re- chased a silk-saree from Shop No. 39. Sarojini
spondent. Nagar Market for a sum ofRs. 2501-. Since
Cri. A. No. 181 of 1993. D/- 1-6-2001. that saree was not of silk, he and his wife had
Penal Code (45 of 1860), S. 161 - gone to return that saree along with the
Prevention of Corruption Act (2 of 1947), Purchase Receipt on 2nd July. 1985 and
Ss. 5(2), 5(1)(d)- Bribe- Demand and asked the shop-keeper to lake back that
receipt of- Police personnel trapped and saree but there was an exchange of harsh
apprehen<led - Complaint that accused words. The shop-keeper and his servants
man-handled Kuldeep Verma and he sus-
GS/HS/D487/200l/MPP/RTTf15406/2001 tained injuries. A.S.I. Punni Ram {accused)
1999 CJJ
he SliUll[
JCC S.P. Sharma v. National Capital Territory of
t
Den: & o@Delhl) 59
her and a propriate punishment in a criminal trial. The 1999 (l] JCC (Delhi] 59
~ P.W. 2 Court wtU be falling in its duty If appropriate
sunenng; punishment is not awarded for a crime which In The High Court of Delhi
!.ft behJnd. has been committed not only against the Hon'ble Mr. Justice Devlnder Gupta
of havoc. individual victim but also against the society
;y, mercy to which the criminal and vtcUm belona. 1be Hon•bte Mr. Justice N.O. Nandi
punishment to be awarded for a crime must
not be irrelevant but it should conform to and · Dated : J8th September, 1998
'Jiatterjee
0994) 2 be consistent with the atrocity and brutality S.P: SHARMA. ........................... Petltioner
with which the crime has been perpetrated.
"shock- the enormity of the crime warranting public Vs.
go un- abhorrence and it should respond to the NATIONAL CAPITAL TERRITORY OF
~riminaJs society's cry for justice against the criminal.
:uffer by If for extremly heinous ~me of murder DELHI & ORS ...................... Respondents
The itn- perpetrated in a very brutal manner without
t is the any provocation most deterrent punishment Crl. W. No. 882 of 1997
J to the is not given the deterrent.puailhJDent will For the Petitioner: Mr. Suhail Dutt and
the loose its relevance." Mr. Viplav Sharma,
Couns Advocates.
ng the
•lie ab-
lJnitted
lt only
lal but
crime
II
". #!
~
23. In our considered view, the crime
in the present case falls in the category of
rarest of rare cases and the sentence has to
be commensurate with tbe degree/gravity of
the offence so that a required message is sent
For the Respondents: Mr. S.S. Gandhi,
Advocate
3.
for
Respondent Nos. 1-

dcring since there can be no place in tile civilised Registrattoa of F.I.a -Criminal writ
·" society for the ,people like appellants/con... petition for directing the S.H~O. Police
victs. concern to register F.l.k. for a cognizable
atsinlz offence - Complaint In writing given at
1994) Pollee Station but no F.I.R. recorded by
nlhe In the above view of the matter. having pollee on ground that the matter appears
i are regard to the facts and circumstances, in our . to be of civil nature - When even the
and view the ~thsentence imposed by the Trial F.I.R. was not record~ ~d no investiga-
these
Ofect
s in
I Court deserves to be confirmed under Sec-
tion 366 of the Code.
tion was made how the pollee could find
that it was of a civil nature - From the
averments of the complaint It is quite
pos-
that
cing
1ich
the
I
I
I
24. In the reSult Criminal Appeal' No.
12/98 and Criminal Appeal No. 34/98 are
dismissed. Murder Reference No. 1/98 Is
accepted. Answered accordingly.
clear that a cognizable offence has been
committed- The S.H.O. concerned Is,
therefore, directed that F .I.R. be
recorded and lnvestlgatloa be carried. on
aad report be submitted before the Court.
e it !
.. ! ~ (Paras 5, 6, 8)
Cr.A. Nos. 12198 &: 34/98 dismissed.
ira Murder Ref. No. 1/98 allowed. Criminal Procedure Code, 1973 - Sec-
i20 tion 154 - Registering F.I.R. - Dispute .
:nd about construction of a house between the
al, parties - A civil suit already pending in
ip- Court - In the meantime criminal of·
60 [Delhi] S.P. Sharma v. National Capital .Territory of Delhi & Ors.
,Q
~99[1]
'
fence also committed by one party against statutory duty of respondent Nos. 1 to 3 to
another _:_ Police cannot refuse In have registered F.I.R. and carried out inves-
registering F.I.R.only because that a civil tigation, in accordance with law. As the
suit already pending - It is another statutory duty was not performed, he had no
forum to decide whether the construction option, but to approach this Court.
was made validly or not- Commission of
offence is quite another theory - Police, 3. After show cause notice, affidavit in
therefore, directed to record F.I.R. for reply was filed by Arun Kumar Sapra,
offence made by the other party. S.H.O.,P.S. Vasant Vihar on 26;2.1998 stat-
irigthat the petitioner had erected some con-
(Paras 5,.6, 7)
... ·' ::> struction by covering the area of his balcony
without sanction from Competent
JUDGMENT Authority, which had resulted in dispute be-
tween the petitioner and respondent No.4.
All-.steps. were being taken by .respondent
DEVINDER GUPTA, J. Nos. 1 to 3 to maintain peace and tranquil-
lity. However, the dispute between the
The petitioner claims to be the owner of petitioner and respondent No. 4 was of a
first floor of Flat No. 110, S.F..S.,.Munirka civil nature and as such, there was a very
Enclave, New Delhi. Respondents Nos. 4 little role to be played by respondent Nos. 1
and 5 are stated to be the occupants of the to 3.
i~

second and third floors of the said flat. It is ._. ,

the petitioner's cao;;e that in March/April, . . ' -4'. ·. When the case was taken up on
1996. he constructed <\ room on his. terrace. 12.5.1998; respondent Nos. 1 to 3 were
Lot of problems wen~ ~rea ted by respmgient asked to file further affidavit with respect to
No.4 by lhreatenll,lg t:q.epe,titione,r' s lAbours, the allegations made regarding the theft of
damaging raw cemen_t.. tfqwmg on t,l:le roQf, water tanks. Additional affidavit was filed
throwing water etc. and.,repeatediy.tQreat~­ by Suresh Dagar, S.H.O., P.S. Vasant Vihar
ing and intimidating the petitioner ~nd his stating tll.at on receipt of petitioner's com-
family members. A notice was sebt in July, plairit, inquiry was got conducted through
1996 to respondent No. 4. On 14tQ July, S.I. Raj Kumar. As per his report, un-
1996 respondent ,No .. 4 came down in authorised construction is· stated to have
drunken and half naked'state to the been carried out by the petitioner. Respon-
petitioner's flat and hurled abusive lan- dent Nos. 4 and 5 are stated to have opened
guage. A cmnplaint to that effect was door in front of their .floor so as to have
lodge<;~. access to the roof of the unauthorised con-
struction raised by the petitioner. On S.I. Raj
2. The real problem is alleged to have K1.unar' s asking the petitioner to produce
been created on 29.11.1997 when it is al- permission from D.D.A. or of the concerned
leged that respondent Nos. ·4 and 5 com- authority, the petitioner is stated to have told
mitted criminal trespass and forcibly· that the same will be produced in Court.
removed the overhead tanks belonging to the Affidavit further states that two water tanks,
petitioner, disconnected water pipe<i and which had been kept on the terrace of the
destroyed· roof and wall of the room. Com- unauthorised construction, were found to
plaint (Annexure-A) was lodged with have been removed and kept on the ground
S.H.O., P.S. Vasant Vihar, but no action was floor. The affidavit also states that as the
taken thereupon. The petitioner's grievance dispute between the parties was with regard
is that the complaint disclosed commission to the use of the roof of the unauthorised
of cognizable offence and it was the construction and both the parties were

..1..... ___ - -
9 llJ
JCC S.P. Sharma v. National Capital Territory of Delhi & O@,Delhi) 61
3 to
lVes- making allegations against each other of on the said roof which belongs to and
the criminal trespass and theft, therefore, no ac- is exclusive property of Shri. S.P.
dno tion was takeh on the petitioner's complaint. Sharma ......... ..

5. Having heard learned Counsel for Smt. Sushma Kapoor has forcibly
·it in the parties and having gone through the af- removed the over-head tanks belong-
pra, tidavits exchanged, we are of the view that ing to Shri S.P. Sharma and have
,tat- respondent No. 3 was not at all justified in !hereby disconnected water-pipes and
!on- not registering a regular case on the basis of have destroyed the roof and wall of
ony the averments made in the complaint, which the room. The construction was
ent on the face of it discloses commission of started by residents of Flat No. 111 by
be- cognizance offence and in not carrying out breaking their own wall to get access
. 4. regular investigation thereon. Though. the to the roof belonging to the applicant
lent power of police to get a verification done of and endangering the safyty of the ap-
Oil- the facts stated in the complaint before plicant."
the registration of a case cannot be denied,
fa which in the instant case was got cenducted 6. On verification, it was noticed that
ery by respondent No.3, .but the scop~of such respondent Nos. 4 and 5 did make an entry
:. I verification. is very limited. It cannot .take over the roof of the construction raised by
place of a regular investigation. The,scope the petitioner and that the tanks had been
of the verificatio.n has been totally removed to the ground floor from the place
misunderstood by respondent No., 3, who where they were kept earlier.
on -'!' '..;
~re without proper and regular investigation
to came to the conclusion that it was a civil 7. fn the face of this verification, it was
of dispute. It could not have done. The incumbent on respondent No. 3 to have
ed petitioner's complaint stated : . proceeded to register regular F.I.R. and car-
.ar ried out proper investigation, in accordance
n- "TI1e residents/owners of Flat No. with law on the facts, as slated in the com-
~h
111, Munirka Enclave, New Delhi, plaint ahd then file a report. It was not done.
n- Mrs. Sushma Kapoor and Mr. H.K. As such, respondent No,· 3 failed ·to dis-
le Kapoor have been on previous oc- charge his statutory oblig-ations. The ques-
a- casions consistently been criminally tion whether the construetion has or has not
:d intimidating and threatening the ap- been raised, in accordance with law or effect
re plicant and her family members being thereof is required to be seen in appropriate
1- residents/owners of Flat No. 110, proceedings; for which .the parties are .stated
ij Munirka Enclave, New Delhi to il- to.have approached the Civil Court. The said.
:e legally and criminaHy trespass on to question is also not a relevant consideration,
d the roof of a room which is a part of which should prevail with respondent No. 3
d the property of the owner of Flat No. in not registering a case.
t. 110 ......... .
'• On November 29, 1997 at 9.00 a.m. 8. Consequently, the writ petition is
e allowed with direction to respondent No. 3
and thereafter the resident/owner of
)
to register an F.I.R .. on the basis of the facts,
j 111, Munirka Enclave along with a
as disclosed in the complaint (Annexure-A),
group of miscreants given effect to
to carry out investigation and file report in
j this aforesaid criminal intimidation
appropriate Court, in accordance with law.
j and continuous threats by illegally
and criminally trespassing on to the Petition allowed.
roof of the property of Shri S.P. Shar-
ma and unauthorisedly constructing

al"i¥* LAW NUL ..

Vol. XXIX 19'll(l)CL R.

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proc<:eding~ rcsult11!~ !hcr..:i"rc._t': :trc qu~1shc:d by ucccpting this
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~l{~ttu 1 ~u· (~:·J3cud!\. 1\Y!l\~ Ss.:::Jb.'~:!'.::-}6:J ! _"'.C.-Offences under-F.I.I\.. ttl
.·i'e'cipc~·v\ :0(:-:He'gis'tereCl: 'zguinst: :.! ~onr.cr Chief Minister of :1
'ststc:.:.....Serious allegations le\'clkt 1 therein against :l\'('11\'<'d 1!1::1
I~<· l1ad :1111:.v:<·d ltoq;c w..::dtlt l11 ut'llciul pusi(iUli ::~ ... , .. u,,i,l!; lti::;
.1 public ~;r.:rr;l:ll ~lnvcstigat!u:t n:n:stt·d to Police Inspector tn 1

tiH: S V without giving :.wy re:;:.;uth - F.I.lL iu question qt:::s!t~·J

l.Jy High Court i11 cxer.cise of its ill!:crent powers U/!:i 482 Cr.P.C.
-On appeal lly spcciullcuvc before Supreme Court, order of
I-iiglt Cour£ ltclJ unsustainable lJotli on question of law as wdl
2s fncts: uiHJ ~ccordingly set aside·-fnve~til-!;•tion comuteuccd l1y
l: :: Pol!ce ~ It!~jlcctui· ~~thou! valid ::t:thority ·in :H.:cord:mcc with
""''r'"'"'"''""'":. : Provisp tp $. S(A)(l) of the A~..·t abo held to be illcgnl aud
· qunslte,ct--.;..-?lnk Gon·. g_iv.:!n t.ib~~·t_y ~~) ~ircct frc~h invcs!igati~n
, ... tbr~H.Ig,~ ~ corapcleilt pollee ~flJ;:~.-: ;:1 :.:.i:~~ complsance \-~·tHl s;.ul
':: ; prcvisio;J:·l;
• : • . . . . : t. I; r
~: :1 ;;{u).;- }-\l~;~.t ~lli'o;·.t~w_ticu .Hcpo;; . vu_dcr ~;. l~'l(!) Cl:-P.C.---
1
.
.-·f.vcccuure·for rcglstnttlon ot- S.H.(;. ol Pultcc Stnhon ~~under
Statuf(Jry ·a~Jig:ltiOU tO register ::J CaS(: ifliL- ha~ f<:41S011 tO SllS{ll'l."(
C9nl~liSSi<,H~ Of a cogni:t..:tblc o(('CIICt·- ; fl. l':I!IJIO( l'r:Jbarl\: ..Uj>OII :111
· ct:q~ir.Y~wftr,tl!el: .ipJ~rn_J~ti_oa laiJ !Jef,;r..:r hilll is reliable or l!(Jl--
:it·~~r;J1-ir~:. .·••n;• ~~~~.OE~.lf~ep,ess or c.r~dttt!JJ.t)' of ..,;qtJ :!;Jutl!::ltion is
110
t :
1
ro 1HJi-
. IowprcccUmt for rcglstrntw;I ol , , _, \_
I ·1 \, .,
• ' 11 ";

!. -·-----------
'!'
- .......
·-. ·- ..
j;
..- .

..
;··

.
J

Surinder Singh Sobti v. The State & Ors. [SC] 107

)' .
(~;
deSt!f\'CS to be andl~ hereby quashed, rcsotr- therein) commHtcd criminal trespass. cheat-
Jng tJJc status quo ante of the trial remaining ing and other offence. As, according to the
with th<? Additional S_esslons Judge to appellant, respondent No. 3 did not care to
proceed 111 accordance With Jaw. register any case on that complaint, such less
(·
investigate into the same, he moved the High
111c ;1ppcal is tllus all owed. Court hy filing a petHion under Article 22()
or tllc Constitution of India seckinl! neces-
sary directions upon the respond~iit No. 3
accordingly. On that Writ Petition the High
l9S/9 (I] JCC [SC] 107
Court passed an order on March 15. 1995,
In The Supreme Court of India the relevant portion of which reads as
under :
Hon'ble Mr. Justice M.K. Mukherjee
"We hereby direct the petitJoner {the
Hon'blc Mr. Justice B.L. Hansaria appellanl) to submJt wit.hln one week
Dated: 20th October, 1995 documents of title on basis of which
he claims interests in the property and
SURlNDER SINGH SOBTI ...... Appellant furnish full information about Chanan
Singh and ot:ilers or through wnorr. the
V$. claims lnteres~ In the property duly
T.HE STATE & ORS ............Resp~ndents supported by an affidavit with ari-
vance COI-Y to counsel for the r~pon­
". Criminal Appeal No. 1251 of 1995
l
dent. ADJ to 27.3.95."
.
. .
(Arlrlng out of S.L.P. (Crl.) N(). 1827/95) · Instead of complying with tho above
FIR- Comflnln~ lod~&ed wJ.th SHO niles· ·. contending,thoInter
direction, appellant moved thla Court
ana, that tho High Court
lng crlmlr.a trospa11s and chentlng not
Ii rogl1tercd by SHO _:... Tho petitioner
moved the-· High Court- The High Court
directed pefltloner to submit document of
could not have iuued' such dl:cctlon as it
amounted to the High Court's donning the
role of respondent No. 3.
title of property nllcglng trespass- Ap-
pcolugnlnst - Held 1 Respondent No. 3 Having considered the allegations made
(SHO) directed to register u case on· the In the complaint (~,;opy of which has hccn
coinplnlnl of the nppellnnt ~nd Investigate enclosed to us Annexure 'C' to til! petition)
Into the snme- High Court oQght not to we find that it clearly discloses cognizable
hn'vc pRSscd such order- It was no func- offences and, therefore, the respondent No.
tion uf the High Court to net n~ such In- 3 was not at all justified In returning to
vestigating pgency ,. .,. ,. , Order passed by register a case thereupon and Investigate
into the same. We are also of the view that
Hl'~h Cnurf ~et aside.
the High Court ought not to have nasscd the
above-quoted order for, it was no
function
JUDGMENT of the High Court to act as the investigating
ag~ncy. We, therefore allow tills appeal, :>cl
· Leave grantc<l. aside the impugned order of the High Coun
and direct respondent No. 3 to register a
2. On or about Jauuary 1, 1995 the case on the complaint of tile appellant and
ilppcllant loqsed a co!nplallll wftt1 !111! Sta- investigate into the same in accordance with
tlon· Hot.~sc Ofnccr, Srin!vaspur Police Sta- law.
tion. New Delhi. (the rcspiJndcnt No. 3
herein) alleging tl1at certain persons (named Appeal allowed.
Cri. L. ' 2001 Mohindro v. State of Pu~jab 2587 '

e of the A1 _, Section 28 further provides that where a consider this aspect appropriately.
rder of the dependant has a right to receive mainte- 12. In the result, the appeal is dismissed.
~an person nance out of the estate and if such estate is
Appeal dismissed.
llegally ac- transferred. the right to receive maintenance
ch is to be may be enforced against the transferee, if
ua the said the transferee has notice of such right or if 2001 CRI. L. J. 2587
\Ccording to the transferee is gratuitous. At this stage, we
(SUPREME COURT)
eved party' would make it clear that the word 'depend-
. pecuniary ant' is defined under Section 21 to mean (From : Punjab and Haryana)
jversely af- relatives of the deceased. namely, ( 1) his or G. B. PATIANAIKAND
ons or by a her father; (2) his or her mother; (3) his B. N. AGRAWAL. JJ.
\lso termed widow. so long as she does not remarry but Criminal Appeal No. 18 of 2001 (arising
·ed." There- does not include the wife whose husband is out ofS.L.P. (Cri.) No. 3142 of2000). D/- 4-
tho has no 1
surviving. In any case admittedly no charge 1-2001.
ycannot be for maintenance was created in favour of the
appellant on the properties which are for- Mohindro, Appellant v. State of Punjab
is true that and others. Respondents.
.e her hus- feited. She has not suffered any legal griev-
1. But that ance and has no legal peg for a justiciable CrbninalP,. C. (2 of 1974). Ss. 154. 157
: an appeal claim to hang on. Hence, there is no sub- - Police investigation - Appellant ap-
stance in the contention raised by the learned proached· police for registering cue -
tfringement
counsel for the appellant. Failure· of police to register case for ao
esoftheAct
~ entities. If 11. Before parting with the judgment, we reuons whatsoever - Not proper - Po-
arne ofrela- would observe that it is difficult to compre- lice directed to register case within a
the ground hend the reason for not including a person week on basis of report to be lodged by
tgemanipu- who is convicted under the Prevention of appellant.- (Para 1)
roperties in Corruption Act, 1988 in the definition of JUDGMENT. :-The grievance of the ap-
>perties are
extent. for
I Section 2 (2)(c) of the Act. It appears that for
controlling the cancerous growth of corrup-
pellant is that though she has approached
the authority for registering a case against
tion apart from further deterrent provisions the alleged accused persons but the police
e relative or ·
illegally acquired properties by means of never registered a case and never put the law
maggrieved corrupt practices could be forfeited under
thority. But, in motion, and therefore, having failed in an
the provisions by suitable amendment in the attempt in the High Court to get a case
: considered Act. The question whether the time is ripe for
belonging to registered she has approached this Court.
such amendment or not is to be decided by Pursuant to the notice issued the respond-
tge manipu- the Legislature. However, we cannot tum
t. ents have entered appearance. Though the
our eyes to the fact that because of mad race
e appellant. of becoming rich and acquiring properties teamed Counsel appealing for the State of
l wife would overnight or because of ostentatious or vul- Punjab stated that there had been an en-
1and's prop- gar show of wealth by few or because of quiry, we fail to understand as to how there
c~ be an equiry without registering a crimi-
laintenance change of environment in the society by
'or this pur- adoption of materialistic approach. cancer- nal case On the facts alleged, it transpires
to Sections ous growth of corruption and illegal gains or that the appellant approached the police for
joption and profits has affected the moral standards of registering a case and get the allegation
.on 18 only the people and all forms of governmental investigated into and yet for no reasons
1e entitled to administration. It is to be mentioned that whatsoever the police failed to register the
I during her under the Indian Penal Code, various pun- case. In the aforesaid premises. we allow
eparately as ishments are provided in Section 53 which this appeal and direct that a case be regis-
. she is enti- include forfeiture of property and Sections tered on the basis of the report to be lodged
m her hus- 61 and 62 provided sentence of forfeiture of by the appellant at the -Police Station within
: determina- property. However. Sections 61 and 62 were a week from today and thereafter the matter
nce.Section deleted by Indian Penal Code (Amendment) \vill be duly investigated into and appropri-
Lim for main- Act, 1921. But considering the situation ate action be taken accordingly.
:be a charge prevailing in the society. it appears that the 2. The appeal is disposed of accordingly.
said provisions are required to be re-intro-
· any portion
eated by the
•of Court. by
I duced so as to have deterrent effect on those
who are bent upon to accumulate wecilth at
the cost of the society by misusing their post
DS/ES/S300014/2001/BNG/CSL
Order accordingly.

·{
!ant and the
or power. We hope that the Legislature would
>r otherwise. i

.
-"'·~-

Crt. L. J. 2000 M/s. ~edchl Chemicals & Phanna Pvt. Ltd. v. M/s. Biological E. Ltd~7
•rehend th• police connected the accused with having known procedure of law. the High Court
committed the crime in the present case is must use a proper circumspection and as
not at all clear. Help has not been taken from noticed above. very great care and caution
he evidence the so called eye witnesses in that regard . to quash the complaint in exercise of its in-
. PW 3 and In the circumstances we have no hesitation herent jurisdiction.
tated as fol- to hold that the evidence of PW 3 and PW 4 (Para 16)
does not inspire confidence to convict the In the instant case the ingredients of the
20 persons accused for the murder and that too with offences under Sections 415, 418 and 420
:y from the charges of the severity of offences arising were not totally absent on the l;>asis of the
·house ..... . under TADA. The reasoning given by the allegations in the complaint. However,
urt was one learned Designated Judge is wholly illogi- whether or not the allegations in the com-
: firtng ....... . cal and consists of too naive an analysis of plaint are otherwise correct has to be de-
see the as- evidence. There must be a critical examina- cided on the basis of the evidence to be led
The assail- tion of the eye witnesses account before com- at the trial in the complaint case but simply
ed ran away ing to the conclusion one way or the other because of the fact that there is a remedy
•t know the and such exercise has not been done by the proviqed for breach of contract, that does
ccused was learned Designated Judge at all. not by itself clothe the Court to come to a
ring the in- 10. In the result. we are satisfied that conclusion that civil remedy is the only rem-
ce never in- there is no case made out against the ap- edy available to the appellant herein. Both
the accused
-- pellant. His conviction and sentence shall criminal law and civil law remedy can be
stand set aside and he will be set at liberty pursued in diverse situations. As a matter
:d similarly. at once unless he is required in any other of fact they are not mutually exclusive but
1dence is as case. Appeal allowed accordingly. clearly co-extensive and essentially differ in
Appeal allowed. their content and consequence. The object
m that day, of criminal law is to punish an offender who
nbertng 7-8 commits an offence against a person, prop-
1with weap- 2000 CRI. L. J. 1487 erty or the State for which the accused, on
house.They (SUPREME COURT) proof of the offence, is deprived of his lib-
firing on us (From : Andhra Pradesh) erty and in some cases even his life. This
:::ourt is the G.B. PATIANAIK AND does not, however. affect civil remedies at
assailants. all for suing the wrongdoer in case like ar-
UMESH C. BANERJEE . .JJ.
sed earlier. I son. accidents etc. It is anathema to sup-
the place of Criminal Appeal No. 2~~3 of 2000 {arising pose that when a civil remedy is available, a
lay after the • out of S.L.P. (Cri.) No. 1971 of 1999), D/- criminal prosecution is completely barred.
never called 25-2-2000.
Cri. P. No. 5386 of 1998, D/- 5-2-1999
r his arrest." M/s. Medchl Chemicals and Pharma Pvt. (Andh Pra), Reversed.
Ltd., Appellant v. M/s. 13iolog!cal E. Ltd. and
tnesses that
after partici-
mony of late
T I
others, Respondents.
Criminal P.C. (2 of 1974), S. 482- In-
Cases Referred : Chronological Paras
(Para 17)

Rajesh Baj~ v. State NCTofDelhi, 1999AIR

tt forward by herent powers - Quashing of complaint
- Allegations levelled in complaint on sew 881 :AIR 1999 sc 1216: 1999 Crt
1e in a group tJ 1833: (1999) 3 sec 259 16
>en the same face ofit disclosed offence alleged -Com-
plaint cannot be quashed merely on Trisuns Chemical Industry v. Rajesh
eapons. It is Agarwal, 1999 AIR SCW 3492: AIR 1999
whether any grounds that civil remedy is available.
SC 3499 : 1999 Cri LJ 4325 : (1999) 5 Scale
1ey could see Cri. P. No. 5386 of 1998, D/- 5-2-1999 609 16
t or a star lit (Andh Pra), Reversed. Dr. Sharma Nursing Home v. Delhi Admin-
tt when they In the matter of exercise of High Court's istration. (1998) 8 sec 745 : 1999 sec
ed how they inherent power, the only requirement is to (Cri) 91 18
arkness par- ·'-· see whether continuance of the proceeding Nagpur Steel and Alloys Pvt. Ltd. v. P.
do not seem ! would be a total abuse of the process of Radhakrishna. 1997 SCC (Cri) 1073 15
g moment of Court. The Criminal Procedure Code con- State of Haryana v. Bhajan Lal, 1992 AIR
>f the assail- tains a detailed procedure for investigation, sew 237: AIR 1992 sc 604: 1992 crt LJ
not have got charge and trial and in the event the High 527: 1992 supp OJ sec 335 16
the accused. Court is desirous of putting a stop to the Pratibha Rani v. Suraj Kumar, AIR 1985 SC
ity at all for 628 : 1985 en LJ s1 7 : 1985 sec (Crt)
1er as to how BR/CR/S100099/2000/BNG/RTT 180 12,17
1488 M/s. Medchl Chemicals & Pharma Pvt. Ltd. v. M/s. Biological E. Ltd.

L.V. Jadhav v. Shankarao Abasaheb Pawar. single Judge on 15th February.

•c41
Cri
199~
AIR 1983 SC 1219: 1983 Crt W 1501 13 Criminal Petition No. 5386 of 1998 did
Smt. Nagawwa v. Veeranna Shivalingappa quash the complaint and hence the peti-
Konjalgi. AIR 1976 SC 194 7 : 1976 Cri W tioner is in appeal before this Court. The
1533 : (l976J 3 sec 736 14. 15 learned single Judge while dealing with the
Ram Jas v. State of U.P.. AIR 1974 SC matter came to a definite conclusion that
1811 : 1974 crt w· 1261 : (1970l 2 sec the complaint does not disclose any offence
740 10 having been committed by the accused-pe-
U.R. Lalit and P.N. Mishra Sr. Advocates. titioner and as such allowed the petition for
S. Nanda Kumar. M. Deena Dayalan. N. quashing of the complaint.
Swaminathan. L.K. Pandey. G. Sivabala- 4. The factual score depict that the re-
murugan. Advocates. with them. for Appel- spondents approached the petitioner for the
lant; P. S. Mishra. Sr. Advocate. R.P. Singh. purpose of securing Ethambutol Hydrochlo-
Chandra Shekhar, Ms. Ritu Singh. Advo- ride drug in bulk for se>.le and use in various
cates, with him, for Respondents. pharmaceutical drugs and products being
BANERJEE, J. : - Leave granted. manufactured by the respondent-Company.
It is at this juncture that the Petitioner has
2. Exercise of jurisdiction under the in-
come out with a definite case that by rea-
herent power as envisaged in Section 482 of
son of a promise of maintaining continuous
the Code to have the complaint or the
supply of raw materials to the respondents
charge-sheet quashed is an exception rather
herein for the purpose of manufacturing
a rule and the case for quashing at the ini-
Ethambutol Hydrochloride and in such a
tial stage must have to be treated as rarest
way so as not to cause any interruption or
of rare so as not to scuttle the prosecution.
hindrance to the manufacturing p.ctivity of
With the lodgment of First Information Re-
the Complainant's factory. the Complainant-
port the ball is set to roll and thenceforth
petitioner entered into an agreement dated
the law takes its own course and the inves-
31st August. 1997 which inter alia records
tigation ensues in accordance with the pro-
as below: ·
visions of law. The jurisdiction as such is
rather limited and restricted and its undue "It is the responsibility of the party of the
expansion is neither pract.icabk nor war- 2nd part to maintain sufficient inventory of
ranted. In the event. however, the Court on the Raw Materials as described in the An-
perusal of the complaint comes to a conclu- nexure-! in order to maintain consistent sup-
sion that the allegations levelled in the com- plies to the manufacturer and not to cause
plaint or charge-sheet on the face of it does any interruption/hindrance with the manu-
not constitute or disclose any offence as al- facturing activity by the manufacturer."
leged. there ought not to be any hesitation 5. It is on the basis of the agreement as
to rise up to the expectation "of the people noticed above and failure to comply there-
and deal with the situation as is required with. it is stated that the petitioner herein
under the law. Frustrated litigants ought not has lost a substantial amount of money and
to be indulged to give vent to their vindic- to the extent of about one crore and the suf-
tiveness through a legal process and such ferance of loss has been by reason of spe-
an investigation ought not to be allowed to cific assurance and representation which ob-
be continued since the same ~s opposed to viously turned out- tn be false. Misrepresen-
the concept of justice, which is paramount. tation on the part of the respondent -accused
2-A. Factual matriX. therefore. would persons to the Compl::~.inant. has been the
thus be relevant in the matter of assessment major grievance and a definite and specific
of the situation as to whether 'civic profile' case has been made out that such a mis-
would outweigh the criminal outfit. representation was intentionally effected
since the accused persons were in the know
3. It appears that as against the initia- of things that in the event the supplies are
tion of proceeding on the fik of 17th Metro- nol effectect, as per the agreement. the Com-
politan Magistrate. Hydcrabad against the plainant is likely to suffer a wrongful loss
appellant under Sections 120-B, 418, 415 which as the complaint proceeds. in the in-
and 420 read with Section 34, Indian Penal terest of the transaction between the par-
Code, the respondents moved the High Court ties. the accused persons were bound to
for quashing of complaint and the !earned protect. It is on this score that relevant ex-
Cri. L. J. 2000 M/s. Medchl Chemicals & Pharma Pvt. Ud. v. Mjs. Biological E. Q 1489

-y. 1999 j tracts of the complaint ought to be noticed

t this juncture. The complaint inter alia
A-2 on 4-4-1?98 wh~ch was ~nded
by A-3. At th1s meeting held on 4-4-1998,
~rovides as below: A-2 and A-3 ag~eed with the position stated
f 1998 d
:::e the peti-
Court. The (i) ~ .... Clause 9 of the Agreement dated by the Complamant and made representa-
ingwith the 31-8-1997 States that the schedule of sup- lions that the suppl~ ~f raw materi~ by A-
f th 2 d 1 particularly the cntlcal raw matenal DL-
:lusion that
~~
ply of raw materials by the party o e n 2. Amino Butanol would be kept up regu-
any offence Part (A-1 Company) and the delivery of the · . f MT f th
~ finished product by the party of the 1st Part lar~y to enable productiOn o _8 s. o e
tccused-pe- i
petition for \"I (Compl~nant) shall be as in Annexure-III fithrmshed productat.t~he CbomAplamlthanrotureghduAce~
' ) ese represen 1ons y - -

~
(to the Agreement and A-3 into writing on the same day and
that there- (ii) Annexure-III to the Agreement dated wrote the letter dated 4-4-1998 to A-1
\oner for the I
31-8-199~ would show that the supply of through A-3. 'fhe contents of this letter_ have
Hydrochlo-
e in various
jucts being
t-Company.
I I
raw matenal DL-2 Amino Butanol by A-1 to
the Complainant must be ~ ~.21 0 Kgs. or
15.21 Mts. per month t~ fac1htate and sus-
tain a monthly production of 8500 Kgs. or
not been rebutted by A-1. The Complamant
states that in spite of this, the Accused de-
liberately failed to act on their representa-
tioris made to the Complainant on 4-4-1998
titioner has
hat by rea-
continuous
J 8.5 Mts. of the finished product Ethambutol
Hydrochloride per month.
and thus continued to inflict huge losses on
the Complainant ....
(ill) Another main factor being that the (vii) .....The Complainant states that in
espondents
mfacturing Complainant should not suffer any loss on its talks and discussions with the Accused.
I in such a account of the execution of the agreement it had been indicating to A-2. A-3, A-4. A-5
:rruption or with A-1. The Complainant states that it en- and A-6 that in case A-1 could not keep up
g p.ctivity of tered into the Agreement dated 31-8-1997 to Its representations which put the Com-
nnplainant- with A-1 under which the Complainant has plainant to huge losses, this Clause 15 could
ment dated been converting the raw materials supplied be invoked and the agreement terminated
=llia records by A-1 into the bulk drug Ethambutol Hy- by the Complainant giving 2 months' notice
5o
drochlortde and supplying lt back A-1 on to A-1. But the Accused would, on these oc-
prescribed conversion charges..... casions, persuade the Complainant not to
party of the (iv) ......The Complainant states that invoke this provision and make further rep-
inventory of the supply of raw materials, particularly the resentations to the Complainant that the
lin the An- principal imported raw material DL-2 Amino supply of niw materials would henceforth
sis tent sup- Butanol, by A-1 was far from regular almost be kept at the agreed level. However, these
tot to cause
1 the manu-
1cturer."
~reement as
.I from the beginning of the agreement.· This
was often being informed to A-1 through
A-2, A-3, A-4 and A-5. Based on the repre-
sentations made by A-1 through A-2 to A-5,
representations were not acted upon by the
Accused while, on the other hand, believing
these representations.~ the Complainant
made schedules of production, but was left
mply there- the Complainant had planned its produc- without materials, holding on to an idle plant
oner herein tion according to the agreement i.e. on the carrying idle labour and thus incurring huge
·money and basis of supply of 15,210 Kgs. DL-2 Amino monetary losses .....
md thesuf- Butanol by A-1 for conversion every month, (viii) .....The Complainant now under-
son of spe- but the Complainant's production plans stands that the above false representations
•nwhichob- were totally dislocated and disrupted on were made by the Accused solely with the
isrepresen- account of A-l's wilful failure to supply the purpose of putting the Complainant to huge
!nt -accused raw materials as represented by them losses and crippling them since the Accused
1s been the through A-2, A-3, A-4 and A-5. · · · themselves were planning to manufacture
md specific
{v) .....The Complainant states that it in their own facilities the bulk drug
;uch a mis-
had to Incur a loss of over Rs. One crore Ethambutol Hydrochloride and wanted to
lly effected
due to the wilful defaults committed by the put the Complainant out of competition by
In the know
Accused. These defaults on part of A-1 were ruining them by keeping them out of pro-
.upplies are
repeatedly brought to the notice of the Ac- duction which was achieved by the Accused
1t, the Com-
cused through telephonic calls by the Com- by making false representations of supply
·ongful loss
plainant, more particularly in the fax mes- of raw material at the agreed levels and then
s, in the in-
sage of 15-12-1997 and 10-2-1998 to A-1 wilfully failing and·omitting to act as per
en the par-
c bound to and A-3. these repre-sentations.
elevant ex- (vi) The Complainant had a meeting \vith (ix) The Complainant was also persuaded
2000 Cri. L. .J./94 N

- - - - - - · - - · - - _Jf..
1490 M/s. Medchl Chemicals & Phanna Pvt. Ltd. v. M/s. Biological E. Ltd. ~
bytherepresentationsoftheAccused to de- Sec. 418, I.P.C..... ~
sist from invoking Clause 15 of the Agree- {XI'v) .......The c o mplai nan t s tates tha t
ment and revoke it which would have re- from whatever has been stated and set out
duced its losses to some extent. The above hereinabove, it is absolutely clear that A-1
acts of the Accused clearly attract the in- to A-6 had, in criminal conspiracy with each
gredients of the offence punishable u/Sec. other and in furtherance of the common in-
415, I.P.C.. .. tention of all have committed the above of-
{x) ...... the Accused were having dishon- fences under Section 415, l.P.C. and 420.
est intention and it was with such intention I.P.C. Letter correspondence. the Complaint
that the Complainant Company was fraudu- and the documents relating to the Agree-
lently and dishonestly induced to enter into mentdt. 31-8-1997 would prove that A-2 to
the Agreement, D I- 31-8-1997. The dishon- A-6 have very much participated in the af-
est intention of the Accused is further seen fairs of A-1 and in particular. those relating
from the complaint lodged by A-6 on behalf to the transactions under the Agreement dt.
of A-1 against three officers of the Complain- 31-8-1997 ..
ant. 6. This longish narration could have
{xi) The Accused were fully aware that probably been avoided, but it cannot be so
the Complainant is a reputed manufacturer done by reason of the fact that the learned
of Ethambutol Hydrochloride and they are single Judge has only recorded:
having good reputation in Indian and Over- ~It appears that under an agreement the
seas markets. The Accused were themselves accused were obliged to supply raw materi-
contemplating entering into production of als for production to the Complainant which
Ethambutol Hydrochloride and wanted to they failed to do. I do not find any allegation
eliminate the competition from the Com- whatsoever in the complaint which would
plainant who had established their name in disclose a criminal offence."
the market. Keeping this in mind the Ac- 7. Before proceeding further in the mat-
cused, in order to earn wrongful gain and
ter, let us now deal with the offences alleged
cause wrongful loss to the Complainant,
in the First Information Report. The first
acted in the aforesaid manner. inducing the offence alleged is that of 'cheating· within
Complainant through representations (by
the meaning of Section 415, I.P.C. For con-
the Accused) to commit to conversion work
venience sake Section 415 reads as below:
and consequently schedule its production
accordingly and then wilfully failing to act 415. Cheating - Whoever, by deceiving
as per the representations thus putting the any person, fraudulently or dishonestly in-
Complainant to huge losses. duces the person so deceived to deliver any
property to any person, or to consent that
{xii) The Complainant further states that
any person shall retain any property or in- .J
but for the false representations made by
tentionally induces the person so deceived
the Accused at the time of entering into the
to do or omit to do anything which he would
Agreement, D I- 31-8-1997. it (Complainant)
not do or omit if he were not so deceived
would not have entered into this Contract.
and which act or omission causes or is likely
The aforesaid acts of the Accused have ru-
to cause damage or harm to that person in
ined the fmances of the Complainant and it body, mind reputation or property, is said
had to incur huge loss due to these acts of to ~cheat"
the Accused. The Complainant states that
the abovesaid acts of the Accused clearly at- Explanation- A dishonest concealment
tract the ingredients of Section 420, I.P.C. of facts is a deception within the meaning of
this section.
{xiii) ...... The preceding paragraphs in
this Complaint would clearly reveal that the 8. The Complaint is also said to be un-
Accused who are bound to protect the in- der Section 418. I.P.C. which reads as be-
terests of the Complainant in the transac- low:
tions under the Agreement, D/- 31-8-1997 418. Cheating with knowledge that
have not only cheated the.Complainant by wrongful loss may ensue to person whose
causing wrongful loss to it, but have also interest offender is bound to protect. Who-
failed to protect the interests of the Com- ever cheats with the knowledge that he is
plainant in the transactions. Hence, the likely thereby to cause wrongful loss to a
Accused are liable to be punished u/ person whose interest in the transaction to

l
Crt. L. J. 2000 M/s. Medchl Chemicals & Phanna Pvt. Ltd. v. M/s. Biological E.~ 1491
which the cheating relates, he was bound, promise by itself would not a ct e pro-
either by law or by a legal contract to pro- visions of Section 418 or 420. ens rea is
states th< teet, shall be punished with imprisonment one of the essential ingredients of the of-
and set ot of either description for a term which may fence of cheating under Section 420. As a
ar that A-1 extend to three years, or with fme. or with matter of fact illustration (g) to Section 415
-ywith each both. makes the position clear enough to indicate
;ommon in-
te above of- 9. The Complaint also alleges an offence that mere failure to deliver in breach of an
~. and 420.
said to have been committed under Section agreement would not amount to cheating but
420. l.P.C. which reads as below: is liable only to a civil action for breach of
~Complaint contract and it is this concept which obvi-
the Agree- 420. Cheating and dishonestly inducing
ously has weighed wit}} the learned single
: thatA-2 to delivery of property.- Whoever cheat and
Judge. But can the factual situation as nar-
din the af- thereby dishonestly induces the person de-
rated above in the longish reproduction of
ose relating ceived to deliver any property to any per-
the complaint lend support to the observa-
reementdt. son, or to make, alter or destroy the whole
tions of the learned Judge, the answer is
or any part of a valuable security. or any-
pivotal one but before so doing one other
could have thing which is signed or sealed, and which
aspect as regards the powers under Section
mnot be so is capable of being converted into a valu-
482, Cr. P.C. ought to be noticed. As noted.
the learned able security, shall be punished with im-
hereinbefore this· power is to be exercised
prisonment of either description for a term
with care and caution and rather sparingly
which may extend to seven years. and shall
·eement the and has been so held on more occasions
also be liable to fine.
rawmateri- than one.
lnantwhich 10. The ingredients require to constitute
12. In the case of Pratibha Rani v. Suraj
y allegation an offence under Section 415 has been lu-
Kumar. 1985 SCC (Crl) 180: (AIR 1985 SC
hich would cidly dealt with by this Court in the Case of
628 : 1985 Cri W 81 7) this Court pointed
Ram Jas v. State of U.P.. (1970) 2 SCC 740
out that the High Court should very spar-
: (AIR 1974 SC 1811 : 1974 Cri W 1261)
in the mat- ingly exercise its discretion under Section
wherein this Court observed as below:
lees alleged 482. Cr. P.C.
t. The first "The Ingredients required to constitute
13. In L.V. Jad.hav v. Shankarrao
ting' within the offence of cheating are-
Abasaheb Pawar, AIR 1983 SC 1219 : (1983)
C. Forcon- (i) there should be fraudulent or dishon- 4 sec 231: 1983 sec (Cri) 813: (1983 Cri
s as below: est inducement of a p~rson by deceiving him; W 1501) this Court observed (Para 10):
)y deceiving (ii) (a) the person so deceived should be "The High Court, we cannot refrain from
:1onestly in- induced to deliver any property to any per- observing, might well have refused to invoke
deliver any son, or to consent that any person shall re- its inherent powers at the very threshold in
onsent that tain any property; or order to quash the proceedings, for these
·perty or in- (b) the person so deceived should be in- powers are meant to b~ exercised sparingly
so deceived tentionally induced to do or omit to do any- and with circumspection when there is rea-
::hhewould thing which he would not do or omit if he son to believe that the process of law is be-
so deceived were not so deceived; and ing misused to harass a citizen."
:S or is likely (ii) in cases covered by (ii)(b) the act or 14. Needless to record however and it
1t person in omission should be one which cause or is being a settled principle of law that to exer-
~rty. is said
likely to cause damage or harm to the per- cise powers under Section 482 of the Code,
son induced in body, mind, reputation or the complaint in its entirety shall have to be
oncealment property." - examined on the basis of the allegation made
·meaning of 11. While Section 415 is an offence of in the complaint and the High Court at that
cheating, Section 418 deals with cheating stage has no authority or jurisdiction to go
id to be un- with knowledge that wrongful loss may en- into the matter or examine its correctness.
eads as be- sue to a person whose interest the offender Whatever appears on the face of the com-
is bound to protect and Section 420 is cheat- plaint shall be taken into consideration with-
rledge that ing and dishonestly inducing delivery of out any critical examination of the same. But
rson whose property. In order to attract the provisions the offence ought to appear ex facie on the
·otect. Who- of Sections 418 and 420 the guilty intent. complaint. The observation in Smt.
e that he is at the time of making the promise is a re- Nagawwa v. Veeranna Shivalingappa
ul loss to a quirement and an essential ingredient Konjalgi, ( 1976) 3 SCC 736 : (AIR 1976
msaction to thereto and subsequent failure to fulfil the SC 194 7 : 1976 Cri LJ 1533) lend support

I
·- - - - -·- - - - ___ __j
i i

1492 M/s. Medchl Chemicals & Pharma Pvt. Ltd. ~/s. Biological E. Ltd. crt. L ; @ J .

to the above statement of law. against the accused or the allegations s~

(l) Where the allegations made in the patently absurd and inherently improbable
complaint or the statements of the witnesses so that no prudent persons can ever reach
recorded in support of the same taken at to such a conclusion that there is sufficient
their face value make out absolutely no case ground for proceeding against the accused.
against the accused or the complaint does In the present case. the complaint as no-
not disclose the essential ingredients of an ticed above does not, however. lend credence
offence which is alleged against the accused; to the questions posed it is now well settled
(2) Where the allegations made in the and one .need not dilate on this score, net-
complaint are patently absl.¥'d and inher- ther we mtend to do so presently that the
ently improbable so that no prudent person allegations in the complaint Will have to be
can ever reach a conclusion that there is accepted on the face of it and truth or fat-
sufficient ground for proceeding against the sity of whi~h wo~ld not be gone into by the
accused; Court at th1s earliest stage as noticed above:
whether or not allegations in the complaint
(3) Where the discretion exercised by the were true is to be decided on the basis of
Magistrate in issuing process is capricious the evidence led at the trial and the obser-
and arbitrary having been based either on vations on this score in the case of Nagpur
no evidence or on materials which are wholly Steel and Alloys Pvt. Ltd. v. P. Radhakrishna,
irrelevant or inadmissible; and 1997 sec (Cri) 1073 ought to be noticed. In
(4) Where the complaint suffers from fun- paragraph 3 of the report this Court ob-
damental legal defects, such as, want of served:
sanction. or absence of a complaint by le- "3. We have perused the complaint care-
gally competent authority and the like. fully. In our opinion it cannot be said that
The cases mentioned by us are purely il- the complaint did not disclose the commis-
lustrative and provide sufficient guidelines sion of an offence. Merely because the of~
to indicate contingencies where the High fence was committed during the course of a
Court can quash proceedings. commercial transaction. would not be suffi-
58. The same principles would apply cient to hold that the complaint did not war-
mutatis mutandis to a criminal complaint. rant a trial. Whether or not the allegations
59. We now come to the question as to
in the complaint were true was to be de-
whether or not a clear allegation of entrust- cided on the basis of evidence to be led at
ment and misappropriation of properties was the trial in the complaint case. It certainly
made by the appellant in her complaint and, was not a case in which the criminal trtal
if so, was the High Courtjustified in quash- should have been cut short. The quashing
ing the complaint at that stage. It is well of the complaint has resulted in grave mis-
settled by a long course of decisions that for carriage of justice. We. therefore. V{lthout ex-
the purpose of exercising its power under pressing any opinion on the merits of the
Section 482. Cr. P.C. to quash a FIR or a case, allow this appeal and set aside the im-
complaint the High Court would have to pro- pugned order of the High Court and restore
ceed entirely on the basis of the allegations the complaint. The learned trial Magistrate
!s
made in the complaint or the documents ac- shall proceed with the complaint and dis- 0
;(\)

companying the same per se. It has no ju- pose of it in accordance with law expedi-
tiously.n
risdiction to examine the correctness or oth-
erwise of the allegations. In case no offence 16. Be it noted that in the matter of ex-
is committed on the allegation and the in- ercise of High Court's inherent power. the
gredients of Sections 405 and 406, I.P.C. are only requirement is to see whether continu-
not made out, the High Court would be jus- ance of the proceeding would be a total
tified in quashing the proceedings. n abuse of the process of Court. The Crtmi-
·l
15. In the matter under consideration, if nal Procedure Code contains a detailed pro-
we try to analyse the guidelines as specified cedure for investigation. charge and trial,
in Shivalingappa's case (AIR l 976 SC and in the event, the High Court is desirous
194 7 : 1976 Cri LJ 1533) can it be said that of putting a stop to the known procedure o
the allegations in the complaint do not make law, the High Court must use a proper cir-
out any case against the accused nor it dis- cumspection and as noticed above, very
closes the ingredients of an offence alleged great care and caution to quash the com-

II
~---~-~---.._ _ _ _ __j_
Crt. L. J.

atlons an
nprobablt
ever react
• sufficient
2000 M/s. Medchl Chemicals & Pharma Pvt. Ltd. v. M/s. Biologic:! E.

plaint in exercise of its inherent jurisdiction.

@
cia! and also money transactions."
1493

e accused. Recently. this Court in Trisuns Chemical 9. We are unable to appreciate the rea-
int as no- Industryv. RajeshAgarwal. (l999) (5) SCALE soning that the provisions incorporated in
d credence 609 : (1999 AIR SCW 3492 : AIR 1999 SC the agreement for referring the disputes to
V"ell settled 3499 : Cri W 4325) observed (Para 4 to 7 of arbitration is an effective substitute for a
score. nei- AIR SCW, AIR and Cri W) : criminal prosecution when the disputed act
.y that the "5. Respondent's counsel in the High is an offence. Arbitration is a remedy for af-
have to be Court put forward mainly two contentions. fording reliefs to the party affected by breach
uth or fal- First was that the dispute is purely of a civil of the agreement but the arbitrator cannot
.nto by the nature and hence no prosecution should conduct a trial of any act which amounted
cedabove: have been permitted. and the second was to an offence albeit the same act may be con-
complaint that the Judicial Magistrate of First Class. nected with the discharge of any function
te basis of Gandhidham has no jurisdiction tQ enter- under the agreement. Hence. those are not·
the obser- tain the complaint. Learned single Judge has good reasons for the hligh Court to axe down
ofNagpur approved both the contentions and quashed the complaint at the threshold itself. The in-
hakrtshna, the complaint and the order passed by the vestigating agency should have had the free-
noticed. In magistrate thereon. dom to go into the whole gamut of the alle-
Court ob- 6. On the first count learned single Judge gationl? and to reach a conclusion of its own.
pointed out that there was a specific clause Pre-emption of such investigation would be
•laint care- in the Memorandum of Understanding ar- justified only in very extreme cases as indi-
~ said that rtved between the parties that disputes. if cated in StateojHaryanav. BhqjanLal(1992
tecomrnis: any. arising between them in respect of any AIR SCW 237: AIR 1992 SC 604: 1992 Cri
1se the of- transaction be resolved through arbitration. LJ 527) (Supra)."
course of a High Court made the following observations: 17. On careful reading of the complaint,
otbe suffi- "Besides supplies of processed soyabean in our view. it cannot be said that the com-
id not war- were received by the complainant company plaint does not disclose the commission of
allegations without any objection and the same have an offence. The ingredients of the offences
; to be de- been exported by the complainant-company. under Sections 415. 418 and 420 cannot be
o be led at The question whether the complainant-com- said to be totally absent on the basis of the
It certainly pany did suffer the loss as alleged by it are allegation~ in the complaint. We however.
minal trial the matters to be adjudicated by the Civil hasten to add that whether or not the aile-
~quashing
Court and cannot be the subject matter of gations in the complaint are otherwise cor-
grave mis- criminal prosecution." rect has to be decided on the basis of the
without ex- evidence to be led at the trial in the com-
!rlts of the 7· Time and again this Court has been plaint case but simply because of the fact
•ide the im- pointing out that the quashment of FIR or a that there is a remedy provided for breach
md restore complaint in exercise of inherent powers of
Magistrate the High Court should be limited to very of contract. that does not by itself clothe the
:s: Court to come to a conclusion that civil rem-
1t and dis- extreme exceptions vide State ofHaryana v.
aw expedi-
()
(\) o
Bhajan Lal 992 Suppl. (l) sec 335 : 0992 eCiy is the only remedy available to the ap-
AIR SCW 237: AIR 1992 SC 60 4 : 1992 Cri pellant herein. Both criminal law and civil
atter of ex-
w 527) and Rajesh Bajaj v. State NCT of law remedy can be pursued in diverse situ-
ations. As a matter of fact "they are not mu-
power. the Delhi. ( 1999) 3 SCC 2 5 9 : 0 999 AIR SCW tually exclusive but clearly co-extensive and
ercontinu- 881: AIR 1999 SC 1216 : 1999 Cri W 1833). essentially differ in their content and con-
be a total 8. In the last referred case this Court sequence. The object of criminal law is to
fhe Crimi- also pointed out that merely because an Act punish an offender who commits an offence
etailed pro- ·• has a civil profile is not sufficient to denude against a person. property or the State for
: and trial. it of its criminal outfit. We quote the follow- which the accused. on proof of the offence,
is desirous ing observations: is deprived of his liberty and in some cases
rocedure o "It may be that the facts narrated in the even his life. This does not. however. affect
proper cir- present complaint would as well reveal a civil remedies at all for suing the wrongdoer
,bove. very commercial transaction or money transac- in cases like arson. accidents etc. It is anath-
h the com- tion. But that is hardly a reason for holding ema to suppose that when a civil remedy is
ftlat the offence of cheating would elude from available. a criminal prosecution is com-
such a transaction. In fact. many a ~heatings pletely barred. The two types of p.ctions are
were committed in the course of cornmer- quite different. in content. scope and impart:
State of Maharashtra v. Laljit Rajshi Shah . L.J.

I(
vide Pratibha Rani v. Suraj Kumar (AIR
1985 SC 628: 1985 Crt W 817) (supra).
18. Mr. Mishra, the learned Senior Ad-
2000 CRI. L. J. 1 94
(SUPREME COURf)
(From: 1994 Cri W 1813 (Bombay)
vocate for the respondents herein being the
G. B. PATIANAIK AND
accused persons, strongly relied upon the
N. SANTOSH HEGDE, JJ.
decisions of this Court in the case of Dr.
Sharma Nursing Home v. Delhi Administra- CrtminalAppealsNos. 752-755Aof 1995,
tion, (1998) 8 SCC 7 45 wherein this Court D/- 28-2-2000.
observed: Mthat fmdings of Section 420, I.P.C. State of Maharashtra, Appellant v. Laljit
has been rested only on the reception and Rajshi Shah and others, Respondents.
did not go into the question whether the (A) Prevention of Corruption Act (2 of
complainant and its accompanymen dis- 1947), S. 2 - Maharashtra Co-operative
closed the essential ingredient of the offence Societies Act (24 of 1961), Ss. 2 (20), 161
under Section 420, I.P.C. namely, disclosed -Penal Code (45 of 1860), S. 21- "Public
inducement. Mr. Mishra upon reliance in Dr. servant" -·Chairman ofMaharashtra Co-
Sharma's case (supra) also contended that operative Societies Act- Though, a Pub-
Section 24 of the I.P.C. has defmed the word lic servant under Societies Act -Not so,
'dishonesty' to mean a deliberate intent to under S. 21 of Penal Code- He cannot be
cause wrongful gain or wrongful loss. It has prosecuted for offences under Penal Code.
been the specific case of the complaint that A MPublic servant" within the meaning of
from the beginning of the transaction there Section 2 of the Maharashtra Co-operative
was a definite intent on the part of the ac- Societies Act, 1960, is not a MPublic Servant"
cused persons to cause wrongful loss to the within the meaning of Section 2 of the Pre-
complainant. Tills aspect of the matter, how- vention of Corruption Act 1947 (II of 1947)
ever, has not been taken note of by the by virtue of the provisions of Section 161 of
learned single Judge. The decision of this the Maharashtra Co-operative Societies Act,
Court in Dr. Sharma's case (supra) thus does 1960, read with Section 21 of the Indian
not lend any assistance to Mr. Mishra in sup- Penal Code. It is undoubtedly true that the
port of quashing of the criminal complaint. Co-operative Societies Act has been enacted
Some other decisions have also been cited by the State Legislature and their powers to
but we do not feel it inclined to refer to the make such legislation is derived from Entry
same except one noted above since they do 32 of List II of the Seventh Schedule to the
not advance the case of the respondents in Constitution. The legislature no doubt in
any way whatsoever. Section 161 of Mah. Act has referred to the
19. Consid~ring the factual aspect of the provisions of Section 21 of the Indian Penal
matter, we unhesitatingly state, however, Code but such reference would not make the
that the issue involved in the matter under Registrars and other officers under Co-op-
consideration is not a case in which the erative Societies Act 'public servants' within
criminal trial should have been short the ambit of Section 21 of I.P.C. The State
circuited. We thus, without expressing any Legislature had the powers to amend Sec-
opinion on the merits of the case allow the tion 21 of the Indian Penal Code, the same
Appeal and set aside the impugned order of being referable to a legislation under Entry
the High Court and restore the complaint. I to III of the Seventh Schedule, subject to
TI1e learned trial Magistrate shall proceed Article 254 (2) of the Constitution as, other-
with the complaint and dispose of the same wise, inclusion of the persons who are 'pub-
in accordance with the law with utmost ex- lic servants' under Section 161 of the Co-
pedition. Be it clarified however that obser- operative Societies Act would be repugnant
vations as above in this judgment be not to the definition of 'public servant" under
taken as an expression of opinion of ours. Section 21 of the Indian Penal Code. That
Appeal allowed. not having been done, by virtue of deeming
definition in Section 161 of the Co-operative
Societies Act by reference to Section 21 of
the Indian Penal Code, the persons defined
as 'officers' under Maharashtra Co-opera-
tive Societies Act cannot be prosecuted for
CR/CR/8100108/2000/BNG/RTT