Criminal Application No.5325 of 2017

10th August, 2018.

Petitioner Counsel: Mr. S.B. DESHPANDE, h/f Mr. SWAPNIL S. PATUNKAR
Respondent Counsel: Mr. S.P. SONPAWALE, Smt. ANJALI DUBE (BAJPAI)

Cases Cited:
Mithabhai Pashabhai Patel & others Vs. State of Gujarat, (2009) 6 SCC 332 [Para 8,19]
Rama Chaudhary Vs. State of Bihar, 2009 ALL SCR 1930=(2009) 6 SCC 346 [Para 9,14,15,19]
Vinay Tyagi Vs. Irshad Ali @ Deepak & others, 2014 ALL MR (Cri) 5200 (S.C.)=(2013) 5 SCC 762 [Para 10]
Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & others, 2017 ALL SCR (Cri) 369=2017 AIR (SC) 774 [Para 10]
Amit Suresh Arya Vs. Central Bureau of Investigation & others, 2017 ALL MR (Cri) 2293 [Para 11]
G. Sagar Suri and others Vs. State of U.P. & others, AIR 2000 SC 754 [Para 12]
Ramesh Dahyalal Shah & others Vs. The State of Maharashtra, Joint Commissioner of Police & others, 2018 ALL MR (Cri) 1050 [Para 12]
Hemant Dhasmana Vs. Central Bureau of Investigation, 2001 ALL MR (Cri) 2179 (S.C.)=2001 AIR (SC) 2721 [Para 14,18]
Bhagwant Singh Vs. Commissioner of Police, 1985 ALLMR ONLINE 230 (S.C.) : 1985(2) SCC 537 [Para 14,18,19]
B. Jayaraman Vs. V. Anandaraj & another, 2017 ALL SCR (Cri) 388=(2015) 15 SCC 758 [Para 15,18,19]

JUDGMENT

JUDGMENT :- Present application has been filed invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973, in order to challenge the order below Exhibit 01 in protest petition, Summary No. 18 of 2016, passed by the learned 4th Joint Judicial Magistrate (F.C.), Jalna, on 14.08.2017.

2. The applicants are the original accused persons and nonapplicant no.02 is the original complainant. Parties are referred hereinafter as per their status before the learned Magistrate.

3. The complainant had come with a case, that she is running ginning business under the name and style Sadguru Fibres at Mahora and Bhokardan. She has also filed suit for specific performance of contract, bearing Special Civil Suit No. 17 of 2012 against accused nos.01 to 03, who are the owners of Vardhman Ginning & Pressing Industries at Bhokardan. It has been contended that the accused nos.01 to 03 have prepared forged documents in order to have financial gain. The document styled as 'leave and license agreement' has been fabricated in respect of the property belonging to the complainant's business. The said document is shown to be notarized and true copy of the same was obtained in June 2012 and then produced it in the civil suit. She had not executed any such kind of document in favour of accused persons. Police had made preliminary enquiry with the Notary Advocate Shri Dilip Bhandarge. At that time, he had given statement before police, that the said document was not notarized before him. Inspite of giving complaint in writing, police had not taken cognizance and, therefore, she had filed the said complaint contending that all the three accused persons have committed offence punishable under Sections 420, 406, 471, 467, 468, 120B read with Section 34 of the Indian Penal Code. She had prayed for sending the complaint application for investigation under Section 156(3) of the Cr.P.C. Thereafter, vide order dated 18.09.2015, learned Judicial Magistrate (F.C.), Court No.03, Jalna, had sent the matter for investigation to Police Inspector, Taluka Jalna Police Station, as per Section 156(3) of the Cr.P.C.

4. After the investigation was done, police filed 'B' summary and placed all the documents before the learned Magistrate. Thereafter, notice was issued to the informant. In response to the same, the complainant filed protest petition. After hearing the complainant and perusing the record, the learned Magistrate allowed the protest petition. 'B' summary was rejected. Directions were given to issue letter to the incharge of Taluka Jalna Police Station, directing the case to be handed over to another Investigating Officer for reinvestigation and filing report within two months. The said order was passed on 14.08.2017 by the 4th Joint Judicial Magistrate (F.C.), Jalna. This order is under challenge in this application.

5. Affidavit in reply has been filed by non-applicant no.02, wherein the contents of her civil suit as well as the criminal complaint have been reiterated. She has supported the action taken by the learned Judicial Magistrate (F.C.), directing the reinvestigation to be carried out. It was also contended by her, that the Investigating Officer had manipulated the entire case only to give clean chit to the accused persons. She has given the instances of lapses on the part of the Investigating Officer and mainly she has contended that the notary Shri Dilip Bhandarge, who had given statement before police earlier when the preliminary enquiry was made, had thereafter given a contrary statement when matter was sent for investigation under Section 156(3) of the Cr.P.C.

6. Heard learned Advocate Mr. S.B. Deshpande, holding for Mr. S.S. Patunkar, for the applicants. Heard learned Additional Public Prosecutor Mr. S.P. Sonpawale, for non-applicant no.01. So also, heard learned Advocate Smt. Anjali Dube (Bajpai) for non-applicant no.02.

7. It has been submitted on behalf of the applicants, that the complainant has filed Special Civil Suit No. 17 of 2012 for specific performance of the contract. Written statement has been filed by the present accused persons and they have denied any such contract for specific performance. Further, the present accused persons have also filed Special Civil Suit No. 57 of 2013 against the complainant for recovery of possession of M/s. Vardhman Ginning & Pressing Industry, Bhokardan, on account of termination of tenancy and also for recovery of amount. An application for production of document was filed on behalf of the present applicants in their matter when the fact of possession was denied. Permission was granted by the civil court to lead secondary evidence. It was the specific contention of the complainant, that an oral agreement had taken place between her and the defendants therein on 15.11.2010. Whereas, the accused persons in their suit, submitted that an agreement was entered into in the form of leave and license on 27.10.2011. Therefore, the nature of the disputed agreement would be decided by the concerned civil court. The said disputed document is stated to be obtained under Right to Information Act. Witness has been examined and, therefore, very existence of the document is under scrutiny before the civil court. Therefore, taking into consideration the civil angle to the dispute, the learned Magistrate ought to have considered all the aspects involved in the matter. When the protest petition was filed by the complainant, the learned Magistrate has specifically passed an order while allowing the said petition, that the reinvestigation should be done, that too, through another officer. This order is perverse and cannot be passed by exercising powers under Section 156(3) of the Cr.P.C.

8. Learned Advocate for the applicants has placed reliance on the decision of the Hon'ble Supreme Court, in the case of Mithabhai Pashabhai Patel & others Vs. State of Gujarat [(2009) 6 SCC 332], wherein it has been held that the further investigation and reinvestigation stand on different footing. It was held that the Supreme Court and High Court can direct State to get an offence investigated and/or further investigated. However, re-investigation being forbidden in law, no superior court would ordinarily issue direction of reinvestigation. He submitted that when even the superior courts cannot direct re-investigation, such power is not available with the learned Magistrate.

9. Further reliance has been placed on behalf of the applicants, on the decision of the Hon'ble Supreme Court, in the case of Rama Chaudhary Vs. State of Bihar [(2009) 6 SCC 346] : [2009 ALL SCR 1930]. In this case also, it has been clearly observed, that "from plain reading of Subsection 2 and Subsection 8 of Section 173 of the Code of Criminal Procedure, 1973, it is evident that even after submission of the police report under Subsection 2 on completion of the investigation, the police has a right to "further" investigation under Subsection 8 of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "further" is additional, more, or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. "

10. Further reliance has been placed on behalf of the applicants, on the decision of the Hon'ble Supreme Court, in the case of Vinay Tyagi Vs. Irshad Ali @ Deepak & others [(2013) 5 SCC 762] : [2014 ALL MR (Cri) 5200 (S.C.)]. On the same lines, it has been held, that the power of the Magistrate to direct further investigation should be exercised sparingly and the supplementary report has to be dealt with as part of primary report and both the reports to be read conjointly. Further reliance has also been placed on the decision of the Hon'ble Supreme Court, in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & others [2017 AIR (SC) 774] : [2017 ALL SCR (Cri) 369].

11. Learned Advocate appearing for the applicants has further submitted that a similar complaint was filed by the complainant before the court of Judicial Magistrate (F.C.), Pune. However, the said complaint has been dismissed. Under such circumstance, second complaint was barred and it was also submitted that it has been learnt by the applicants that a third complaint has also been now filed before Judicial Magistrate (F.C.), Jalna. All these complaints are making same allegations. Therefore, the second complaint before the Judicial Magistrate (F.C.), Jalna, in which the impugned order has been passed, is barred under Section 300 of the Cr.P.C. He has relied on the decision of Division Bench of this Court at Nagpur Bench, in the case of Amit Suresh Arya Vs. Central Bureau of Investigation & others [2017 ALL MR (Cri) 2293], on the point of double jeopardy.

12. The third point that has been raised on behalf of the applicants is, that while passing the order below Exhibit 01, the learned Magistrate has not applied his mind which is the sine qua non for passing any order. The learned Magistrate failed to consider that there is civil dispute pending between the parties and, therefore, ought to have been slow in passing any further order. He has relied on the decision of the Hon'ble Supreme Court, in the case of G. Sagar Suri and others Vs. State of U.P. & others [AIR 2000 SC 754] and decision of Division Bench of this Court at principal seat, in the case of Ramesh Dahyalal Shah & others Vs. The State of Maharashtra, Joint Commissioner of Police & others [2018 ALL MR (Cri) 1050] in order to buttress his above said third point.

13. Per contra, it has been submitted on behalf of non-applicant no.02, that when 'B' summary was rejected by the learned Magistrate, against him, a revision under Section 397 of the Cr.P.C. is maintainable and, therefore, the applicants cannot approach this Court by invoking powers under Section 482 of the Cr.P.C. Section 300 of the Cr.P.C. is wider than Article 20(2) of the Constitution of India and that scope is required to be considered. Further, the accused persons were never tried before the court at Pune. Pune court had no jurisdiction and, therefore, was not the "competent court". The accused were discharged by the said court and not acquitted and, therefore, the accused persons cannot claim protection under "double jeopardy". The complainant had shown by filing protest petition as to how the investigation has been carried out in a defective and prejudicial manner. The notary had given contrary statements. So also, he had not tried to collect the original copy of the impugned document. Since the impugned document has not been collected, it may affect the case. However, when an attempt was made by the complainant to get the documents verified from handwriting expert, Advocate Praful B. Kulkarni, the said opinion ought to have been considered by the Investigating Officer. She further submitted that the impugned order is not passed under Section 173(8) of the Cr.P.C., but the case was still on stage of Section 156(3) of the Cr.P.C.

14. Learned Advocate for non-applicant has relied on the decision of the Hon'ble Supreme Court, in the case of Hemant Dhasmana Vs. Central Bureau of Investigation [2001 AIR (SC) 2721] : [2001 ALL MR (Cri) 2179 (S.C.)], wherein reliance was placed on the decision in the case of Bhagwant Singh Vs. Commissioner of Police [1985(2) SCC 537] : [1985 ALLMR ONLINE 230 (S.C.)], which was a threeJudge Bench decision. It was held, that "three options are open to the court on receipt of a report under Section 173(2) of the Code when such report states that no offence has been committed by persons accused in the complaint. They are : (1) The court may accept and drop the proceedings; or (2) The court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (4) The court may direct further investigation to be made by the police."

15. Further reliance has been placed by the learned Advocate for non-applicant no.02, on the decision of the Hon'ble Supreme Court, in the case of B. Jayaraman Vs. V. Anandaraj & another [(2015) 15 SCC 758] : [2017 ALL SCR (Cri) 388]. It was submitted that the facts before this Court are similar to the facts which were before the Hon'ble Supreme Court. It was held that it was open to the Magistrate, under such circumstances, to direct further investigation under Section 156(3) of the Cr.P.C. and require the police to make a further report to the learned Magistrate. She has also relied on the decision in the case of Rama Chaudhary [2009 ALL SCR 1930] (supra).

16. The facts before the court suggest that initially the complainant had filed Special Civil Suit No. 17/2012 against the accused persons and the industry the partnership, for specific performance of the oral contract that had taken place on 15.11.2010. It appears that the written statement was filed, wherein the present accused persons had made a reference of the written agreement, that was alleged to have been executed on 27.10.2011 before notary Advocate, Dilip Bhandarge from Jalna. Along with the written statement / say, true copy of the document dated 27.10.2011 appears to have been produced. Thereafter, it appears that a complaint application was filed by the complainant before police regarding forgery of the document. Enquiry was held by the police. Statement of Advocate Dilip Bhandarge was recorded. Even an application in his own handwriting was given to the Police Inspector wherein it was stated that he has not signed the document nor the said document was executed in his presence. As per the complainant, inspite of the said fact, police did not take cognizance and, therefore, she had filed the criminal complaint. The said complaint was for investigation under Section 156(3) of the Cr.P.C. and a negative report has been produced after the investigation. As a natural consequence, notice was issued to the complainant who had then filed the protest petition.

17. The complainant had demonstrated that on certain points, the Investigating Officer had not at all investigated the case. According to her, the Investigating Officer did not consider that the date of purchase of the stamp paper is stated to be 25.10.2011. However, the agreement is shown to have been executed on 01.10.2011. If we consider the copy of the document which is produced on record, it shows the date of execution on the last page as 27.10.2011. The stamp of Treasury Office, Pune, bears the date as 12.10.2011. No doubt, in the contents, it is stated that the duration of the leave and license would be from 01.10.2011 to 01.09.2012. So, it cannot be stated that the agreement was executed on 01.10.2011. As aforesaid, the notary has denied the execution in his presence when his statement was recorded by police but thereafter, it appears that when the matter was sent for investigation under Section 156(3) of the Cr.P.C., the said notary has given contrary statement. As regards the valuation of the stamp, certain questions are raised. She had also tried to rely on the handwriting expert's opinion which she had obtained in her own capacity. That report was given on 07.03.2017.

18. It appears that from various points those were raised by the complainant, the learned Magistrate was convinced that the investigation has not been carried out properly and, therefore, he had rejected the 'B' summary. Here, the satisfaction of the Magistrate carries more importance. As held in the case of Bhagwant Singh [1985 ALLMR ONLINE 230 (S.C.)] (supra), which has been then relied in B. Jayaraman's case [2017 ALL SCR (Cri) 388] (supra), as well as Hemant Dhasmana's case [2001 ALL MR (Cri) 2179 (S.C.)] (supra), that the learned Magistrate had three options. The observations from Bhagwant Singh's case [1985 ALLMR ONLINE 230 (S.C.)] (supra) would more clarify what are the powers of the Magistrate under such circumstance. The following observations at para 04 which have been reiterated in B. Jayaraman's case [2017 ALL SCR (Cri) 388] (supra) read as under:-

"Now, when the report forwarded by the officer in charge of a police station to the Magistrate under subsection (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under subsection (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognized by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."

19. Therefore, no fault can be found with the action taken by the learned Magistrate in allowing the protest petition and rejecting 'B' summary. The learned Magistrate could not have been justified in dismissing the complaint merely on the basis of the fact that the matter is subjudice before the civil court. It is pertinent to note that as per the contention of the complainant, the said document was forged earlier than the written statement was filed by the accused persons. Therefore, an enquiry as to when and who has forged the document was necessary. Further, from the action taken by the learned Magistrate, it is clear that he was not inclined to take cognizance of the offence only on the basis of protest petition. Therefore, in view of Bhagwant Singh's case [1985 ALLMR ONLINE 230 (S.C.)] (supra), the learned Magistrate was justified in directing further investigation. Here, it is to be noted that the learned Magistrate has used the word "re-investigation". Definitely, there appears to be mistake in using that word by the learned Magistrate. In the case of Rama Chaudhary [2009 ALL SCR 1930] (supra) and Mithabhai Pashabhai Patel & others (supra), the said distinction between "further investigation" and "re-investigation" has been elaborated, hence it ought to have been considered by the learned Magistrate. Even, in the case of Rama Chaudhary [2009 ALL SCR 1930] (supra), what is made permissible is the further investigation, that means, additional, more or supplemental and not a fresh or reinvestigation wiping out earlier investigation. Therefore, clarification to that effect can be ordered. But taking into consideration the decision in Bhagwant Singh's case [1985 ALLMR ONLINE 230 (S.C.)] (supra) and B. Jayaraman's case [2017 ALL SCR (Cri) 388] (supra), such directions of further investigation can be given by the Magistrate under Section 156(3) of the Cr.P.C.

20. As regards the point of double jeopardy, it is to be noted that the complaint which was filed before Pune court was also sent for investigation under Section 156(3) of the Cr.P.C. and the report was given to the concerned Magistrate, that the offence has taken place within the jurisdiction of Jalna court. It was also observed that the complainant is not interested in proceeding with the matter further and, therefore, the complaint came to be disposed of under Section 245 of the Cr.P.C. Section 245 of the Cr.P.C. prescribes, when accused shall be discharged. It provides, that "If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him." Subsection provides, that "Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." Thus, what is contemplated is discharge of the accused and not acquittal. Definitely, acquittal is different from discharge. Therefore, I do not find any substance in the point regarding bar of the complaint under Section 300 of the Cr.P.C.

21. Much has been argued on the point that the learned Magistrate has directed the incharge of the police station to hand over the investigation to other Investigating Officer. At the cost of repetition, I would like to say that even in the case of B. Jayaraman, such directions were given by the learned Magistrate i.e. to conduct proper investigation again by another Police Officer, through Assistant Commissioner of Police, Central Crime Branch, and file a report. The said order has been upheld by the Hon'ble Supreme Court. Therefore, no fault can be found with the order passed by the learned Magistrate. Only fault that can be found is in respect of use of word "re-investigation". But that can be corrected. Hence, I do not find substantive merit in the application. But only for the correction of the word, the application deserves to be partly allowed.

22. Hence, the following order:

(a) The application is hereby partly allowed.

(b) The impugned order dated 14.08.2017, passed by the learned 04th Joint Judicial Magistrate (F.C.), Jalna, in Summary No. 18 of 2016, is hereby modified. The word "reinvestigation" appearing in the order is hereby deleted and substituted with the word "further investigation"

(c) Prayer clause "C" of the application is hereby rejected.

Application partly allowed.