Patna High Court - Orders
Deepak Kothari vs State Of Bihar on 18 June, 2014
Author: Anjana Prakash
Bench: Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9522 of 2009
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Deepak Kothari, resident of Unit A-1 to 04, Cinamara, Jorhat, C. Ex. No.
AAACK 5571, resident of P.S. Phelkhana, Thana, Distt. Kanpur.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Santosh Kumar, son of Ramu Mandal, resident of Mohalla Purav Sarai
(Durga Asthan), P.S. Kotwali, Distt. Munger.
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Appearance:
For the Petitioner : Mr. N.K. Agrawal, Sr. Adv. with
Mr. Vijay Anand, Adv.
Mr. D.N. Tiwari, Adv.
For the State : Mr. Sanjeev Ranjan, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH
ORAL ORDER
21 18-06-2014Heard learned counsel for the Petitioner and the State.
2. The Petitioner seeks quashing of the entire proceeding including the order dated 29.9.2005 passed by the Judicial Magistrate, 1st Class, Munger, in Complaint Case No. 765 (C) of 2005 by which he has taken cognizance under Sections 406, 419 and 427 of the Indian Penal Code.
3. The Case of the Complainant is that on a certain date he had purchased four packets of „Pan Parag Pan Masala‟. In each packet was a Scratch Card and 50 pouches of Pan Parag. It was written on the Scratch Card that on scratching the same the buyer would get prize of Rs.5 to 50. When the Petitioner scratched the first Card, he found Rs.7/- written on it. In the next two, only Rs. 3/- was written Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 2/17 and, hence, he did not scratch the rest. He complained that the accused persons in order to cheat the public at large had made false promises, as regards quantum of prize money.
4. The admitted position is that the Complainant did not annex any documents and the Court took cognizance only on the basis of the oral allegations levelled in the Complaint, Complainant‟s statement on Solemn Affirmation and oral supporting statements of two witnesses.
5. The Petitioner happens to be the Managing Director of M/s Kothari Products Ltd., residing in Kanpur, and „Pan Parag‟ is in wide circulation and a very popular product of the Company.
6. The learned counsel for the Petitioner submits that even accepting allegations contained in the Complaint as dealt with earlier there being complete paucity of any ingredient to satisfy the basic requirement of any criminal offence, the present prosecution is a gross abuse of the process of the court and deserves to be set aside.
7. On the other hand, the counsel for the Complainant submits that the Petitioner being the Managing Director is personally liable for the misrepresentation that a person would receive prize money of Rs. 5 to 50 on scratching the card, whereas on two of them only Rs.3 was written, hence, he should be prosecuted for false representation and cheating. He relies on a decision reported in AIR Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 3/17 1960, Supreme Court, 979, paragraph-4 (Bashirbhai Mohamedbhai Vrs. The State of Bombay) wherein it was held that false representation was one of the ingredients of the offence under Section 420 Indian Penal Code.
8. Before I proceed with the merits of the case, I would like to discuss the question of jurisdiction which is of some importance in the scheme of a criminal prosecution and is explained in the context of the present case.
9. To elaborate, in my opinion, in a criminal trial there are three aspects of territorial jurisdiction; i) that of the offence i.e. where it was committed, ii) the residence of the Accused and iii) that of the Complainant.
10. Our Code of Criminal Procedure, a self contained Code is an amazing piece of legislation which keeps in mind the various contingencies from the standpoint of all the three components of a Trial i.e. the Court, the Complainant, the Accused and protects and balances interest of all the three. There is complete assurance that none of the three would be unfairly disadvantaged and ensures that there is level playing ground for each of them as we shall shortly see.
11. The scheme of the Code provides creation of Courts in every State unambiguously defining both their territorial jurisdiction as well as the quantum of punishment they can impose vide the First Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 4/17 Schedule under the head of Classification Of Offences appended to the Code.
Establishment of Courts and their jurisdiction;
6. Classes of Criminal Courts. -
Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrate;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
11. Courts of Judicial Magistrates- (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:
(Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.) (2) The Presiding Officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 5/17 Judge in a Civil Court.
12. As for territorial jurisdiction it is specifically defined in Section 177 Cr. P.C. reproduced below.
Section 177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
However, the Legislature at the same time protects a proceeding even if conducted in the wrong territorial jurisdiction if it has caused no prejudice as Section 462 suggests.
462. Proceedings in wrong place- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub- division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
13. Further Section 201 provides for transfer of a Complaint by a Magistrate who is not empowered to proceed in the matter to the appropriate Magistrate but at the pre cognizance stage as held in the case of Devendra Kishanlal Dagalia Vrs. Dwarkesh Diamonds Private Limited and Others reported in (2014) 2 SCC Page 246.
201. Procedure by Magistrate not competent to take cognizance of the case. -
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -
(a) if the complaint is in writing, return it Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 6/17 for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
14. Since Courts have to depend on a prosecuting agency for producing an offender before him let us examine the provisions pertaining to the procedure to be adopted in a situation when the offender resides outside its local jurisdiction. Relevant Sections are reproduced below.
48. Pursuit of offenders into other jurisdictions. - A police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India.
67. Service of Summons outside local limits. - When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.
77. Where warrant may be executed. - A warrant of arrest may be executed at any place in India.
78. Warrant forwarded for execution outside jurisdiction. - (1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 7/17 the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, alongwith the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.
(underlining mine)
15. Thus, we find that the Code gives an option to a Court to have warrants executed through i) an Executive Magistrate, ii) Deputy Superintendent of Police, iii) the Commissioner of Police when an accused resides outside his jurisdiction. Importantly by requiring forwarding of documents pertaining to the case u/s 78(2) an opportunity is given to an offender to make out a case for transit bail u/s 81 and at the same time it helps the Magistrate to apply his discretion on such an application.
The procedure when it is sent to a Police Officer is defined under Section 79.
79. Warrant directed to police officer for execution outside jurisdiction. - (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 8/17 jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.
So much for the Courts and the Prosecuting Agency.
16. As for the Complainant we find that vide Section 177 he can file a complaint only where the offence has been committed and not wherever it is convenient to him. No doubt a case can be transferred at the discretion of the Supreme Court/High Court/Sessions Court vide Sections 406/407/408 respectively under certain circumstances but importantly as we have seen that the Code, even while prescribing a different procedure in situations when an offender resides beyond the territorial jurisdiction, at no time accords any unfair advantage to any party. The offender outside local limits is not discriminated against.
17. Unfortunately to get past this hurdle gradually a practice Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 9/17 developed among unscrupulous litigants to conjure territorial jurisdiction to extract an unfair advantage and ambush an unsuspecting person compelling him to drop to his knees. Litigations initiated especially by way of filing Complaints became strategies for unlawful gain. It became a game of dice when persons from far flung areas became pawns in the hands of manipulative Complainants who had nothing to lose but a bit of money.
18. We do not need Rocket Science to understand that it would be certainly very unnerving for a person to be hauled up in Court in a remote area each of which follows its own procedural practices in matters of remand/bail/205 Cr. P.C. The impotent rage one would feel at being hit below the belt is not difficult to imagine, nor the immediate reaction to prevent a person from landing up in a situation like this.
19. When the Legislature became cognizant of this unethical practice it introduced an important amendment in section 202 in the year 2005. Before I come to the amendment I would like to quote the reasons for the same;
Amendment Act, 2005 - False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 10/17 jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.
(underlining mine) The Section with the amendment in procedure is underlined for emphasis and quoted below:-
202. "Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to be Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 11/17
(3) If an investigation under sub-
section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
20. Thus, we find that the legislature introduced a cautionary modification which stressed on the importance of ethics, apart from fairness in criminal prosecutions. To achieve ethical goals, it is now mandatory for the Magistrate to resort to the three courses i.e. i) to hold an inquiry himself, ii) make it over to the Police with some riders or iii) by any other person, in situations when an accused resides outside of his local limits. Requirement of Section 202 would be fulfilled only in an event when the Magistrate adopts one of the three courses mentioned above. He is not legally permitted to ignore the amendment to negate its effect. It would be a situation most absurd when the Judges themselves do not follow the legal procedure and create a situation when they land themselves on the other side of the law. I would be of the opinion that once the problem has been identified and a law put in place, it is the Judiciary which has to take the call for which we have to deconstruct our old perceptions and fall in line to prevent people losing faith in us.
21. However, even while it is easy to understand the clauses
ii) and iii) but the nature of inquiry not having been defined in i) it has Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 12/17 lead Magistrates to mistakenly believe that examination of witnesses produced on behalf of the Complainant is an inquiry. Fact of the matter is that it is under Section 200 that the Complainant and his witnesses are examined. The mode of inquiry to be conducted by himself not having been elaborated is left to his discretion. In appropriate cases he can require the Complainant to produce relevant documents/summon any person who would be in a position to throw light on the matter, or he may require the Complainant to place all communications between the parties to find out if there are sufficient grounds for proceeding. He can hence evolve any method to achieve the main object of postponement of issuance of summons i.e. to ascertain the veracity of the allegations, justifiability of the prosecution and to satisfy himself as to whether the proposed accused is required to be summoned before him. Thus even while it is completely within his discretion to decide the mode of inquiry, it is not within his discretion to dispense with the same. Consequently, if a Magistrate does not hold an inquiry by one of the three means mentioned above, he flouts the mandate of law and commits an illegality which vitiates the proceeding. I must add that at this important juncture a Court is not to act mechanically nor robotically but as an alert umpire who weeds out frivolous litigation and thwarts the mischievous designs of an unworthy litigant, protects its own interest of not being saddled with useless baggage, as well as Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 13/17 that of a law abiding citizen.
22. At the cost of repetition, I must once again stress that the Code of Criminal Procedure which has seen a number of amendments consistently focuses and acknowledges the need for fairness to all. We must keep in mind that no law, including procedural, is static. It evolves, adapts according to the changes in the Society. Hence Judiciary is required to conform and be responsive to the legislative changes to fill in the trust deficit. It cannot afford to indifferently look the other way and ignore the will of the people in whose interests the Judiciary exists. Judges are not independent of the Laws nor are they its masters. We are mere mortals who dutifully serve the cause of Justice, a medium, to lawfully and faithfully translate the aspirations of the public to reality.
23. I am inclined at this stage to quote from a book „The Rule Of Law‟ written by Lord Chief Justice England and Wales, Tom Bingham, in which he explains the principles of rule of law in various arenas including a criminal trial and writes, „It must, (secondly,) be accepted that fairness is a constantly evolving concept, not frozen at any moment of time.‟ It would do us great service to acknowledge the importance of these few but great words while dispensing justice.
24. I would also, at this stage, remind the magisterial courts that it is its bounden duty to ensure that frivolous litigations are Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 14/17 snuffed out at the earliest opportunity. Or else they will flourish and choke the criminal justice delivery system despite numerous legislative attempts to the contrary.
25. In the present case we find that the Magistrate examined two witnesses in terms of Section 200 but held no inquiry U/S 202 and evidently did not take note of the amendment, the effect of which was lost on him. What is even more distressing is that the Magistrate by taking the matter so lightly sided with this cavalier and irresponsible attitude of the Complainant and summoned the Petitioner in utter disregard of the decision of the Apex Court in the case of Pepsi Foods Ltd and Anr. Vrs. Special Judicial Magistrate and Others, reported in (1998) 5 SCC 749 thereafter followed in several cases. Relevant lines quoted below;
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 15/17 to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
26. Courts below are directed to keep itself abreast not only with the enacted Laws, but also those laid down by its Superior Courts especially the Apex Court which has the effect of Law as per the Constitutional provision of Article 141. It is binding equally, if not more, upon a Judicial Officer, than a common man, on account of the nature of his functions. We should not be misled that the old adage which goes something like „There is no presumption that a judge knows law‟ is for Judges. Fact of the matter is that it is to hone the argumentative skills of a lawyer to convince a Judge with his own command on law assuming that the Judge knows none of it.
27. Apart from the procedural illegality committed by the Magistrate, I would now examine the case on merits and whether ingredients of a Criminal offence are present in the facts of the case.
28. I find that cognizance has been taken under Section 406 Indian Penal Code i.e. criminal breach of trust, 419 Indian Penal Code i.e. cheating by personation and 427 Indian Penal Code i.e. mischief causing damage to the tune of Rs.500/-. The case of the Complainant is that contrary to representation that on scratching the Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 16/17 cash coupon Rs. 5 to 50 would be written, in only one of the three scratch Cards the amount 7 i.e. between 5 to 50 was written.
29. As pointed out earlier the Complainant did not attach the Scratch Cards which was the only document which could satisfy the Court as to the nature of representation or the veracity of the allegations. I also must note with some anguish that when this Court questioned the Counsel for the Complainant as to what was the material he had based his complaint on, the reply was that he would produce it at the stage of charge. I am flabbergasted as to how the present Complaint has come this far in absence of this clinching document, and am of the firm opinion that in such circumstances it cannot be permitted to plague the Courts and harass the Petitioner any longer. Further, in the facts of the case, there is complete paucity of any ingredient to satisfy the requirement of Sections 406/419 and 427 Indian Penal Code and the Complaint deserves to be dismissed.
30. In the case relied upon by the Counsel for the Petitioner i.e. AIR 1960 Supreme Court, Page 979 (Bashirbhai Mohamedbhai Vrs. The State of Bombay), I find that the facts of the case were that the accused persons had approached the Informant that they would duplicate currency notes for his benefit. The three accused persons were trapped while accepting the money from the Complainant and convicted by the Court below. In Appeal the Patna High Court Cr.Misc. No.9522 of 2009 (21) dt.18-06-2014 17/17 Sessions Court acquitted them. The State then filed an Appeal in the High Court which set aside the order of acquittal and restored the conviction. Then one of the accused approached the Hon‟ble Supreme Court, but the conviction was upheld on the ground that it was on a false representation, a sum of Rs.200 had been obtained from Champak Lal which act was punishable under Indian Penal Code. On going through the judgment, I am unable to understand as to how the decision is applicable to the facts of the present case.
31. Thus to conclude this Court quashes the prosecution both on the ground that the Magistrate failed to hold the mandatory inquiry in terms of Section 202 Cr. PC. vitiating the proceeding and also on the ground that in the facts of the case no offence whatsoever is made out.
32. In the result the application is allowed and the entire proceeding including the order dated 29.9.2005 passed by the Judicial Magistrate, 1st Class, Munger, in connection with Complaint Case No. 765(C) of 2005, is hereby quashed.
(Anjana Prakash, J) S.Ali/-
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