Criminal Writ Petition No.219 of 1989

7th December, 1995

Petitioner Counsel: Shri NITEEN V. PRADHAN
Respondent Counsel: Smt. J.S. PAWAR

Cases Cited:
130 B.L.R. 1195 (F.B.) [Para 5]

JUDGMENT

JUDGMENT :- This is a Petition filed by the Petitioner for quashing the F.I.R. in C.R.No.286 of 1987 of Bhosari Police Station, Pune and to set aside the Order dated 21st November 1988 in Criminal Miscellaneous Application No.954 of 1988 on the file of the Additional Sessions Judge, Pune. Heard both the sides.

2. The Petitioner is one of the accused in the C.R. number mentioned above which has been registered by the Bhosari Police Station for offences under Section 408, 420 and 467 read with Section 34 of the Indian Penal Code. The complaint is lodged by the Head Office which is situated at Pune, but the Petitioner was working at the relevant time as a Circle Manager at Coimbatore.

The Petitioner's grievances are twofold. As far as the first grievance, viz., the condition imposed by the learned Sessions Judge granting the bail is concerned, it may not now survive since chargesheet has been filed and the attendance of the Petitioner in the police station is not necessary. Therefore, the grievance is that the alleged offences are committed at Coimbatore and therefore, the Police at Pune have no territorial jurisdiction to investigate and hence, the F.I.R. may be quashed.

At the time of argument it is brought to my notice that after investigation, the police have already filed a chargesheet in the Court of the Judicial Magistrate, First Class, Khadki, Pune on 29.12.1988. In view of the fact that the chargesheet has already been filed, even the prayer for quashing of the F.I.R. may not strictly arise for consideration at this stage.

3. The learned Counsel for the Petitioner therefore, submitted that since the chargesheet has been filed after the investigation, the Petitioner cannot be tried at the Court at Pune since the alleged offences have been committed at Coimbatore and it is only the Court at Coimbatore, which is competent to try the case. This is not a relief asked for in the Petition. I have entertained this argument since it arises out of the subsequent event of the chargesheet having filed subsequently. On the other hand, the learned Additional Public Prosecutor submitted that since the offence of cheating under Section 420 IPC is also committed at Pune, the Court at Pune has jurisdiction to try the case.

4. Before going to the rival contentions I may point out that in the first instance, the Management of the Company-M/s Bhoruka Roadlines Private Limited filed an earlier complaint with the Coimbatore police alleging offence under Section 408,468, 471 of the Indian Penal Code on 10.8.1987. It appears that no witnesses appeared before the police and no documents were produced before the police and hence, the investigation was stopped as per the order of the Magistrate. Then the second complaint was filed by the Management on 23.11.1987 at Bhosari Police Station with which we are now concerned where the offences alleged are under Section 408, 420 and 467 read with Section 34 of the Indian Penal Code.

5. As far as the offence under Section 408 of the Indian Penal Code is concerned, there is no dispute that the chargesheet has to be filed in the Court where the offence of criminal breach of trust has taken place as provided in Section 181 (4) of the Code of Criminal Procedure. The learned Counsel for the Petitioner invited my attention to number of Authorities on the point where it has been held that in the case of an offence of criminal breach of trust, the Court in whose jurisdiction the offence was committed is competent to try the offence. This view has been taken by a Full Bench of this Court in (Vol. 32) 130 B.L.R. 1195 ( Jivandas Sarchand ). The learned Counsel for the Petitioner has also referred to some other authorities on this point and it is not necessary to refer to the same since, the point in dispute is covered by the statutory provision viz., Section 181 (4) of the Code of Criminal Procedure.

6. But the F.I.R. in the present case does not restrict itself to Section 408 of the Indian Penal Code. Therefore, all the decisions cited by the learned Counsel for the Petitioner may not be relevant for our present purpose since in addition to Section 408 I.P.C., the prosecution is invoking Section 420 of the Indian Penal Code.

But the learned Counsel for the Petitioner contended that the F.I.R. does not disclose an offence under Section 420 of the Indian Penal Code. Therefore, it was argued, to that extent, the F.I.R. is liable to the quashed and then as far as Section 408 of the Indian Penal Code is concerned, it has to be tried by the Court at Coimbatore. The argument is no doubt attractive. But on deeper scrutiny and having regard to the subsequent event I am afraid that any opinion can not be expressed at this stage.

It is true that if the F.I.R. does not disclose an offence, it can be quashed. It is well settled that the High Court can exercise inherent powers under Section 482 of the Code of Criminal Procedure to quash an F.I.R. if no criminal offence is made out. But the question is whether at this stage of the F.I.R. we can say with certainty that no offence is made out under Section 420 of the Indian Penal Code.

7. The learned Counsel for the Petitioner was also right in his submission that in a way the offence under Section 408 and 420 of the Indian Penal Code cannot stand together. Either it should be one offence or the other offence and both cannot go together. But if the allegations regarding both the offences are in respect of same transaction, the said argument holds good. But if we peruse the two F.I.Rs. and also the allegations in the present F.I.R., it is very difficult to say at this stage, whether the offence falls under Section 408 or 420 of the Indian Penal Code in respect of one and the same transaction.

The allegation in the first F.I.R. is about criminal misappropriation on the ground that the accused as Circle Manager of the Transport Office has collected various amounts of freight charges from the customers and misappropriated the same without crediting them to the Head Office at all.

As far as the allegation in the second F.I.R. regarding the offence under Section 420 of the Indian Penal Code is concerned, the allegation is that accused has cheated the Company by producing false challans and false accounts.

I may also mention that we are no longer at the stage of F.I.R. to quash the same. Rightly or wrongly, the investigation has gone far ahead and we have the affidavit of the Investigating Officer Shri Dattatraya Ganpat Hotkar, Inspector of Police, who says that after complete investigation chargesheet has been filed. Now we will have to see the allegations in the chargesheet, the statements of the witnesses and the documents collected during the investigation to find out whether the offence is only under Section 408 or 420 of the Indian Penal Code or both or none; that exercise cannot be done at the present stage since all the materials collected by the Investigating Agency are not before the Court. The accused will have to raise that plea and ask for a discharge on the ground that no offences are made out against him or he may also question the territorial jurisdiction of the Pune Court on the ground that only offence made out is under Section 408 of the Indian Penal Code and not under Section 420 of the Indian Penal Code. The trial Court will have to hear both sides and consider both the documentary and oral evidence collected by the Investigating Agency and then give its finding one way or the other. The party aggrieved namely, either the prosecution or the defence, can certainly approach either the Sessions Court or High Court for appropriate reliefs according to law.

8. At this stage, it is not possible to express any opinion only on the F.I.R. whether an offence under Section 420 of the Indian penal Code is made out or whether it makes out only an offence u/s 408 of the Indian Penal Code. Even if sufficient allegations are not made out in the F.I.R., it is open to the Investigating Officer during investigation, to record further statements of the complainant and witnesses and then find out what offences are disclosed during investigation. In fact, we do not know whether the chargesheet is filed under Section 408 or Section 420 of the Indian Penal Code or both or for any other offence. The investigation cannot be confined to the allegations in the complaint. Similarly, even the Court is not bound and confined to the chargesheet filed by the police under Section 173 of the Code of Criminal Procedure; inspite of the charge sheet filed by the Police the Court can say that no offences are made out and can discharge the accused. Therefore, I feel that at this stage, it is not desirable to express any opinion one way or the other particularly when all the materials are not before the Court.

9. The Petitioner rushed to this Court mainly being aggrieved by the order of the Sessions Judge dated 21.11.1988 under which the Petitioner was directed to attend the police station for the purpose of investigation and then of course, incidentally, he also sought quashing of the F.I.R. But now, the subsequent event having taken place and chargesheet has been filed, the Petitioner will have to approach the learned Magistrate applying for discharge or even question the territorial jurisdiction of the Court. The learned Magistrate can hear both sides and pass appropriate order according to law. If after considering the entire material, the learned Magistrate comes to the conclusion that only offence under Section 408 of the Indian Penal Code is made out, then the Magistrate at Pune will have no jurisdiction and the chargesheet will have to be filed in the Coimbatore Court. If other offences are made out then the learned Magistrate will have to see whether the offences have been committed in his jurisdiction and whether he can try the same according to law.

10. In the result, the Writ Petition is disposed of with liberty to the Petitioner to approach the learned Magistrate and make appropriate application according to law. The stay granted in this case is vacated. The learned Magistrate shall proceed with the criminal case according to law. All the contentions urged before this Court are left open.

Petition disposed of accordingly.

Ordered accordingly