2007 ALL MR (Cri) 213
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
J.H. BHATIA, J.
Sunil S/O. Bhaskarrao Kulkarni Vs. State Of Maharashtra & Anr.
Criminal Application No.1715 of 1994,Criminal Application No.1720 of 1994
29th September, 2006
Petitioner Counsel: Shri. S. A. DESHMUKH
Respondent Counsel: Shri. P. M. SHINDE,Shri. S. S. CHOUDHARY
Criminal P.C. (1973), Ss.173, 202 - Investigation - "B" Summary report - Acceptance of - Magistrate may either accept police report and take cognizance of the offence or may disagree with the report and drop the proceedings or may direct further investigation - If the police report reveals that no offence has been committed, before accepting that report, the Magistrate has to give a notice to first informant and to offer an opportunity of being heard before accepting that report of the police.
Magistrate may either accept the Police report and take cognizance of the offence or may disagree with the report and drop the proceedings or may direct further investigation. If the Police report reveals that no offence has been committed, before accepting that report, the Magistrate has to give a notice to the first informant and to offer an opportunity of being heard before accepting that report of the Police. In the present case the learned C.J.M. accepted 'B' Summary report from the Police without giving an opportunity of being heard to the first informant. The facts stated above make it clear that by acting hastily on both the occasions, the learned C.J.M. landed himself in most embarrassing situation and he passed two conflicting and contrary orders which cannot stand together. [Para 11]
C.J.M. had utterly failed to apply his mind before passing both the conflicting orders. He should have either inquired the matter himself or should have directed the Police to investigate U/s.202. In fact, in this case the police had already investigated and the report was submitted later on, so possible it would not be necessary for the Police to make further investigation. In such cases in view of the provisions of of Section 202, Cr.P.C., the Magistrate should have himself inquired and directed the complainant to produce evidence in support of his complaint and after recording that evidence, he could take into consideration the evidence led by the complainant before the Magistrate as well as the Police report and the statements recorded by the Police before taking any decision to take cognizance and to issue process or otherwise. It would be improper to quash the complaint itself, but in the given circumstances it is necessary to quash the issuance of process. At the same the C.J.M. had acted hastily and wrongly in accepting 'B' Summary submitted by the Police. It is true that the Respondent No.2 has not challenged that order before this Court but in the given circumstances, it will be necessary for the High Court to quash the said order also in exercise of inherent power to secure the ends of justice. 2006 AIR SCW 3990 and 2006 ALL MR (Cri) 2683 (S.C.) - Ref.to. [Para 13]
Minu Kumari Vs. State of Bihar, 2006 ALL MR (Cri) 2683 (S.C.) [Para 11]
Bhagwant Singh Vs. Commnr. of Police, 1985(2) SCC 537 [Para 11]
Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS, 2006 AIR SCW 3990 [Para 12]
R. P. Kapoor Vs. State of Punjab, AIR 1960 SC 866 [Para 12]
State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 [Para 12]
JUDGMENT :- Applicants in both the applications seek to quash process issued by learned C.J.M. Parbhani by order dated 12-10-1994 on the complaint filed by Respondent No.2. Therefore, both these applications may be disposed of by the common judgment.
2. To state in brief Respondent No.2 lodged a report at Police Station Kotwali, Parbhani on 8-12-1993, wherein he alleged that he was serving as a Branch in-charge of distribution centre, Parbhani for Majur Chhap Bidi Company of Jalna. Laxman Kishanrao Gorantyal, is owner of that Company. Dattu Chilka whose full name is Dattatraya Hanumant Chilka, was a Bill accountant of said Majur Chhap bidi Company. According to the report, on 1-12-1993 at about 9-30 p.m. when Respondent No.2 was in office, the accused persons namely Laxman and Dattu called him and his brother-in-law Raghuveer Kshirsagar to Niraj Hotel, Parbhani. Respondent No.2 and his brother-in-law went to the said Hotel where three rooms were already booked by the accused persons. The accused persons and Respondent No.2 and his brother-in-law were sitting in room No.106, which was closed from inside. At about 12 p.m. (midnight) one stamp vendor was called there and 12 stamp papers were purchased from him by the accused persons. At about 2 a.m. both the accused persons and three unknown persons took Respondent No.2 and his brother-in-law to his house by one Matador and they, after beating and assaulting the inmates of the house and even watchman, obtained signatures of Kusumbai Birajdar and Pratibha Kshirsagar and at the same time they also obtained signatures of Respondent No.2 and his brother-in-law on blank stamp papers. At about 2.15 a.m. they took Respondent No.2 and his brother-in-law again to Room No.106 at Niraj Hotel. There one unknown person assaulted and beat Raghuveer Kshirsagar. Thereafter, they were detained in the room till 9 a.m. of 2-12-1993. After giving threats etc. they also took the cheque book of Respondent No.2 issued to him by United Western Bank Ltd., Satara. In that book, on cheque bearing No.152561, signature of Respondent No.2 was forcibly obtained and amount of Rs.2,50,000/- was written on it. Name of Kishan Venkaya Gorantyal was written as payee. At about 11-45 a.m. Respondent No.2 and his brother-in-law were released. After that the Respondent No.2 was in depressed condition and could not understand what to do. Later on the accused persons threatened him to make arrangement for payment of the cheque amount threatening that they had obtained signatures on the blank stamp papers. On the basis of this report Crime No.171/93 U/ss. 366, 341, 323, 448, 506 read with Section 34 of I.P.C. came to be registered against Laxman Kishanrao Gorantyal, Dattu Chilka and two unknown persons, all residents of Jalna.
3. About the same incident and for some offences on 11-10-1994 Respondent No.2 filed a complaint against five persons including Laxman and Dattu Chilka as accused Nos.1 and 2. Accused No.3 S. B. Kulkarni, is an advocate from Jalna and accused No.4 is a businessman and accused No.5 is a stamp vendor from Parbhani. In the complaint besides the fact stated above, he alleged that he had lodged a report at Police Station on 8-3-1993 and the offence was also registered. However, investigating officer P.S.I. Bhurewar, instead of investigating the case properly, had joined hands with accused persons who are multimillionairs. P.S.I. Bhurewar had taken the complainant to Police Station and compelled him to write a note to withdraw the complaint. Due to the fear and being helpless he had to write such a note on 24-12-1995. After that incident the complainant had also made a grievance before the Superintendent of Police with request to make proper enquiry in the matter. The complainant also came to know that Laxman had lodged a false complaint through Dattu for the offence punishable U/ss.406, 420, IPC against Respondent Nos.2 and 10 others with intent to harass himself and other relatives. Not only this, the Laxman had also filed a complaint U/s.138 of Negotiable Instruments Act, on account of dishonour of cheques on which signature of wife of Respondent No.2 was forcibly taken on 2-12-1993. He alleged that on 4-8-1994 when he and his wife and brother-in-law Raghuveer had been to the Court of C.J.M. Jalna on receipt summonses, they had seen accused Nos.3 S. B. Kulkarni, and identified him as one of the culprits who was shown as unknown in the original report. He alleged that as the Police had not investigated the case, he was filing the private complaint. The learned C.J.M. recorded verification statement of Respondent No.2 on his complaint and issued process against all the five accused for the offence punishable U/ss.341, 448, 365, 323, 506 read with Section 34 of I.P.C.
4. Criminal Application No.1715/94, is filed by accused No.3 Sunil B. Kulkarni, who is an advocate. According to him he was conducting all the matters for and on behalf of Laxman Gorantyal and Majur Chhap Bidi Company and therefore, the Respondent No.2 has falsely implicated him in the complaint. Criminal Application No.1720/94 is filed by accused No.1 Laxman and No.2 Dattu, who are owner and accountant respectively of Majur Chhap Bidi Company. According to them the Respondent No.2 was in service of Majur Chhap Bidi Company and in-charge of Parbhani District for the purpose of distribution of Bidis and in that capacity he had misappropriated and committed breach of the trust in respect of amount of Rs.14,96,820/-. Therefore, on 1-12-93, subject was discussed and the Respondent No.2 showed his inability to reimburse whole of the amount but he had agreed to reimburse the amount in instalments. In view of the settlement, Respondent No.2 had issued a cheque for Rs.2,50,000/-. According to him the cheque was issued on 6-12-93 and was post dated 15-12-93. They denied forcible abduction from his house to the Hotel or their wrongful confinement or house trespass or other offences etc. According to them the Respondent No.2 lodged belated report with Police on 8-12-1993 and during investigation it was found that the allegations in the report were false. On 23-3-1994, Respondent No.2 also gave in writing to accused No.1 Laxman, wherein he admitted to have committed fraud and according to him he had lodged a report with the Police because his mental condition was not proper and he had also agreed to withdraw the said complaint and to reimburse the amount. It is contended that Respondent No.2 had kept quiet for a period of about 11 months and then lodged a private complaint in the Court of C.J.M. on 11-10-94. This complaint was lodged after service of summons in the complaint filed by applicant Laxman U/s.138 of Negotiable Instruments Act. It is contended that Police had also submitted its enquiry report clearly showing that the case was false but the said report was not considered and the learned C.J.M. issued process only on the basis of allegations made in the complaint and the verification statement of Respondent No.2.
7. It is vehemently contended on behalf of the applicants that the incident of the present case had allegedly taken place on 1st and 2nd December, 1993, but the report was lodged with Police on 8-12-93 while the complaint was lodged on 11th October, 1994. Mr. Kasliwal, learned counsel contended that if the report and the complaint are carefully read, it would become clear that Respondent No.2 was admittedly in service of Laxman Gorantyal, as District Manager of Majur Chhap Bidi for Parbhani District. In para 1 of the complaint, Respondent No.2 admitted that he was working on that post from 1-4-1988 till 19-3-1994. According to Mr. Kasliwal, if the alleged incident had taken place on 1st or 2nd December, 1993, he could not continue in service of accused Laxman for a period of more than 3-1/2 months after that. Admittedly, there was no enmity prior to the alleged incident. Applicant Laxman was employer of Respondent No.2. According to him there was misappropriation of huge amount by the Respondent No.2 and to settle that dispute meeting had taken place on 1-12-93 and in settlement a cheque of Rs.2,50,000/- was issued on the basis of which a case U/s.138 of Negotiable Instruments Act was filed by applicant Laxman. He mainly relied upon 'B' Summary submitted by the Police in respect of the report lodged by Respondent No.2.
8. The relevant documents reveal that the investigating officer Y. P. Jadhav had submitted a 'B' Summary on 28-4-1994 contending that statement of several witnesses were recorded and as there was no independent witness to support the allegations, the report lodged by Respondent No.2 appears to be false. He submitted that 'B' summary to his superiors for the purpose of approval and submission to the Court of C.J.M., Parbhani. Record reveals that on 2-12-94 Sub-Divisional Officer, Parbhani forwarded that 'B' Summary to the C.J.M. with his recommendation to accept the same. The said 'B' Summary was received in the office of C.J.M. on 3-12-94 and on the same day it was registered as Sr.No.19/94 in the Register maintained for such Summaries. Record reveals that the said 'B' Summary report was accepted by learned C.J.M. on 8-2-95. The order to issue process on the private complaint of Respondent No.2 was passed on 12-10-1994. Therefore, when the process was issued the Police report or 'B' Summary in respect of F.I.R. lodged by the Respondent No.2 was not before the C.J.M. He considered only the contents of the complaint and the verification statement of the Respondent No.2 and issued process. However, if the learned C.J.M. would have been careful, he could easily find from the contents of the complaint that alleged incident had taken place on 1st and 2nd December, 1993 about which F.I.R. was already lodged and Crime No.171/93 was registered by the Police. In such circumstances, instead of issuing process immediately he could have directed enquiry on investigation U/s.202, Cr.P.C. Had he directed such investigation by Police, the Police report would immediately come before him and the statements recorded by the Police would be available to him for consideration as to whether there was or was not sufficient material to issue process. However, as the learned C.J.M. did not direct enquiry by himself or by any other Judicial Magistrate nor he directed the investigation by Police U/s.202, Cr.P.C. and he issued the process, a very piquant situation has arisen, wherein on the same facts, in private complaint of Respondent No.2, learned C.J.M. issued process indicating that there was sufficient material to show that they had committed offence for which they should be put to trial. On the other hand, the same C.J.M. accepted 'B' Summary report of the Police on 9-2-95 which indicated that the allegations made by Respondent No.2 about the commission of said offence were false. Thus, at present there are two contradictory orders of the same Court.
9. It may be noted here that Mr. Kasliwal, learned counsel vehemently contended that 'B' Summary report was submitted to the C.J.M. on 28-4-1994 and it was before him when he issued the process on the private complaint but after careful perusal of the record, I am satisfied that on 28-4-94 'B' Summary report was prepared by the Police Officer and it was submitted to the superior officer for approval and onward transmission to the Court of C.J.M. for final orders. 'B' Summary report clearly shows that it was registered at Serial No.19/94 in the relevant register on 3-12-1994 in the Court of C.J.M. In fact, the letter from S.D.P.O. Parbhani clearly shows that he had forwarded the said 'B' Summary report to the C.J.M. by his letter bearing Outward No.786/Summary/1994 dated 2-12-1994. It appears that as the original papers of 'B' Summary were not being traced, a query was made from the office of C.J.M. and by his letter dated 19-3-2005, C.J.M. has informed this Court that the said 'B' summary was registered at Serial No.19/94 dated 3-12-94. In view of this record, I am unable to accept the contention of Mr. Kasliwal, that 'B' Summary was in fact available to the C.J.M. when he passed the impugned order to issued process. Even then as pointed out above, the learned C.J.M. has passed two orders one on the private complaint and another on 'B' Summary and those two orders are diametrically opposite and contrary to each other. Both these orders cannot stand together.
10. Mr. Kasliwal, vehemently contended that on that basis of the cheque issued by Respondent No.2 for the amount of Rs.2,50,000/- Laxman Gorantyal has admittedly filed a complaint U/s.138 of N.I. Act and in that case trial Court has convicted the Respondent No.2 and against that conviction, Respondent No.2 has preferred Criminal Appeal No.23/97 which is still pending on the file of Sessions Court, Jalna. According to Mr. Kasliwal, in view of the conviction of Respondent No.2 U/s.138 of N.I. Act, the allegations made by Respondent No.2 in his complaint are falsified and that corroborates the plea of the present applicants that this case is false and therefore, the order to issue process is liable to be quashed. It is material to note that present applications were filed in 1994. In Criminal Application No.1715/94, on 22-12-1994, this Court issued Rule and granted interim stay to the further proceeding in R.C.C. No.501/94. That order appears to have been continued. In Criminal Application No.1720/94 also by order dated 14-3-95, interim relief to stay the proceedings in the complaint was granted. As a result of the interim stay the proceedings in private complaint filed by Respondent No.2 were stayed. However, the proceedings in the complaint U/s.138 N.I. Act filed by Laxman continued. In fact, there was serious dispute about the circumstances in which that cheque was signed and issued. Natural justice required that both the matters should have been heard and disposed of together, so that all the facts and evidence available to both the parties could be placed before Court but unfortunately proceeding in one complaint is stayed and other complaint proceeded ahead, resulting into conviction. Anyhow as appeal against that conviction is pending before Sessions Court, it will not be appropriate to make any comment about the result in that case. This is pointed out only to reject the contention of Mr. Kasliwal that because Respondent No.2 is already convicted U/s.138 of N.I. Act, his complaint should be deemed to be false.
11. It appears that learned C.J.M. acted hastily while passing the order to issue process on the private complaint, particularly when that complaint was filed about 10 months after the alleged incident and when as per the contents of that complaint itself he had lodged F.I.R. on the basis of which Police had registered an offence. As pointed out earlier, had the C.J.M. called the Police report, he would have saved himself from passing two contradictory orders. At the same time, it must also be said that the learned C.J.M. acted hastily while accepting 'B' Summary submitted by the Police. It appears that when he approved that 'B' Summary he was not aware that he himself had passed an order to issue process against accused persons on the private complaint. In Minu Kumari and another Vs. State of Bihar and others, 2006 ALL MR (Cri) 2683 (S.C.), the Supreme Court relying on earlier authority in Bhagwant Singh Vs. Commnr. of Police, 1985(2) SCC 537, held that where the Magistrate decides not to take cognizance and to drop the proceedings or take a view that there is no sufficient ground for proceeding against some of the persons mentioned in the F.I.R., notice to the informant and granting of opportunity of being heard in the matter becomes mandatory. Their Lordships in fact, dealt with the provisions of Section 173(2) and the provisions of Section 190(1)(b) Cr.P.C. in detail and observed as follows in para 10 and 11. :
"10. When a report forwarded by the Police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process ; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigation Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the Investigation and the cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Sections 202 also. (See Ms. India Carat Pvt. Ltd. Vs. State of Karnataka and another (AIR 1989 SC 885).
11. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. This Court in Bhagwant Singh Vs. Commnr. of Police (1985(2) SCC 537) held that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard."
In view of the legal position as settled in the above observations of the Supreme Court, it is clear that the Magistrate may either accept the Police report and take cognizance of the offence or may disagree with the report and drop the proceedings or may direct further investigation. If the Police report reveals that no offence has been committed, before accepting that report, the Magistrate has to give a notice to the first informant and to offer an opportunity of being heard before accepting that report of the Police. In the present case the learned C.J.M. accepted 'B' Summary report from the Police without giving an opportunity of being heard to the first informant. The facts stated above make it clear that by acting hastily on both the occasions, the learned C.J.M. landed himself in most embarrassing situation and he passed two conflicting and contrary orders which cannot stand together.
12. The learned counsel for the applicants as well as Respondent No.2 have placed reliance on number of authorities in support of their rival contentions. Mr. Kasliwal, and Mr. Deshmukh, learned counsel for the applicants contended that when the complaint itself discloses no offence and the circumstances are such that the complaint is per se false, the process issued by the learned C.J.M. is liable to be quashed and set aside. On the other hand, Mr. Choudhary, learned counsel for Respondent No.2 also vehemently contended that truth or otherwise of the case cannot be decided at this stage by appreciating the evidence because that has to be left to the trial Court. According to him, the contents of the complaint do disclose the offences and it cannot be said that the offences are not disclosed and therefore, the complaint and the order to issue process cannot be quashed. It will not be necessary to refer to the large number of authorities referred to by learned counsel for both the sides. However, some of the authorities may be referred to. In Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS & Another, 2006 AIR SCW 3990, very recently the Supreme Court considered several authorities on the subject and after referring to the authorities in R. P. Kapoor Vs. State of Punjab, AIR 1960 SC 866 as well as State of Haryana Vs. Bhajan Lal, AIR 1992 Supreme Court 604, Their Lordships observed as follows in para 7 and 8.
"7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non protest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising power under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complaint has alleged and whether any offence is made out even if the allegations are accepted in toto.
8. In R. P. Kapur Vs. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
While analysing the third category of the cases where inherent powers can be exercised as per the authority in R. P. Kapur. Their Lordships observed as follows in para 9 :
"9. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliance or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge."
In fact, Their Lordships recapitulated what was held in State of Haryana Vs. Bhajan Lal, in further observations in para 9 itself as follows :
"The illustrative categories indicated by this Court are as follows :
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the incontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material."
13. If the present case is considered on the touch stone of the law laid down by the Supreme Court as above, it will be clear that this is not a case which would fall in second category as stated in R. P. Kapur. The complaint certainly discloses the facts which show that the offence was committed. As far as third category is concerned, it pertains to the cases where allegations constitute an offence but there is no legal evidence or the evidence adduced clearly or manifestly fails to prove the charge. In the present case police had recorded some statements, copies of which were not available to the first informant nor he got an opportunity to point out to the learned C.J.M. that the opinion of the Police was not correct. At the same time, the learned C.J.M. issued the process only on the basis of the verification statement of the complainant and had not called upon the complainant to lead any further evidence in support of his allegations. Unless the evidence is placed before the Court, it will not be possible to come to the conclusion whether the evidence is sufficient to prima facie establish the offence or not, so that process may or may not be issued. Taking into consideration the facts and the legal position, I find that the learned C.J.M. had utterly failed to apply his mind before passing both the conflicting orders. He should have either inquired the matter himself or should have directed the Police to investigate U/s.202. In fact, in this case the police had already investigated and the report was submitted later on, so possible it would not be necessary for the Police to make further investigation. In such cases in view of the provisions of Section 202, Cr.P.C., the learned Magistrate should have himself inquired and directed the complainant to produce evidence in support of his complaint and after recording that evidence, he could take into consideration the evidence led by the complainant before the Magistrate as well as the Police report and the statements recorded by the Police before taking any decision to take cognizance and to issue process or otherwise. In my considered opinion, it would be improper to quash the complaint itself, but in the given circumstances it is necessary to quash the issuance of process. At the same time I find that the learned C.J.M. had acted hastily and wrongly in accepting 'B' Summary submitted by the Police. It is true that the Respondent No.2 has not challenged that order before this Court but in the given circumstances, it will be necessary for this Court to quash the said order also in exercise of inherent power to secure the ends of justice.
14. In view of the above circumstances, both the applications are partly allowed. The impugned order issued by learned C.J.M. to issue process on the complaint of Respondent No.2 is hereby quashed and set aside. At the same time in the interest of justice the order passed by leaned C.J.M. on 8-2-1995 accepting 'B' Summary report submitted by the Police is also hereby quashed and set aside. The learned C.J.M. is hereby now directed to make inquiry U/s.202 Cr.P.C. himself and call upon the complainant to lead evidence in support of his complaint. After such evidence is placed before him, he shall consider that evidence as well as 'B' Summary report submitted by the Police alongwith the statements of the witnesses recorded by the Police and after considering all the material, he may take appropriate decision as per law as to whether the process should or should not be issued on the said complaint.