Punjab-Haryana High Court
Mrs.Sushmita Majumdar Samal & Another vs State Of Haryana & Another on 4 November, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.-M No.26744 of 2007 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: November o4, 2008
Mrs.Sushmita Majumdar Samal & another
.....Petitioners
VERSUS
State of Haryana & another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Baldev Singh, Senior Advocate with
Mr.Sudhir Sharma, Advocate,
for the petitioners.
Mr.Yashwinder Singh, AAG, Haryana,
for the State.
Mr.R.K.Anand, Senior Advocate with
Mr.Sandeep Wadhawan, Advocate,
for respondent No.2.
****
RANJIT SINGH, J.
Ground of territorial jurisdiction of the police at Rohtak to investigate this case is the main ground of attack by the petitioners to Criminal Misc.-M No.26744 of 2007 :2: seek quashing of the FIR registered against them under Sections 408, 465, 468 and 471 IPC. H.P.S.Chugh, Company Secretary and Deputy General Manager (Finance) of M/s Lakshmi Precision Screws Ltd. Rohtak lodged the impugned FIR at Police Station, City Rohtak, District Rohtak on 22.6.2006.
The allegations in the FIR are that the above noted company is a public limited company manufacturing high tensile fasteners, which are supplied to various customers/concerns throughout India and abroad including Maruti Udyog Ltd., Gurgaon. The customers of the company used to make payments for the material purchased through cheques/drafts/pay orders. In order to facilitate early recovery of their dues, the company has authorised one of its employee, namely, Jogendra Samal, petitioner No.2 resident of Ghaziabad to collect cheques, particularly from Maruti Udyog Ltd., Gurgaon and ABN Amro Bank, Bara Khamba Road, Delhi and send these to Rohtak or deposit in the bank accounts at Delhi. For some time, the company experienced paucity of funds and noticed that outstanding payments particularly against Maruti Udyog Ltd. were on the increase. For carrying out reconciliation of the accounts, petitioner No.2 was asked to file details of monthly statements of ABN Amro Bank, but he kept on postponing the same on the one pretext or the other. Ultimately, consolidated statement of accounts was sent in first week of May, 2006 for the period from 1.4.2005 to 31.3.2006. On scrutiny of the same, 15 banker cheques issued by ABN Amro Bank amounting to Rs.51,97,499/- in favour of the company could not be traced in any of the accounts either at Criminal Misc.-M No.26744 of 2007 :3: Delhi or at Rohtak. Company made enquiry in this regard from petitioner No.2, which did not receive any clear or explicit reply. The company wrote another letter on 2.6.2006 asking petitioner No.2 to furnish details. Further enquiries revealed that payment of the cheques were made to Syndicate Bank, R.K.Puram, Sector 5, New Delhi. When the said branch of the bank was approached, it revealed that amount collected from ABN Amro Bank, New Delhi and Maruti Udyog Ltd. were credited to the current account No.9009101000- 2582 (old account No.25811) standing in the name of Lakshmi Precision Screws Corporation having address as 33/1087 DDA Flats, Madangir New Delhi. This account was opened and operated by petitioner No.2, whose photograph was also affixed on the account opening form. Petitioner No.2 confirmed this fact. It is accordingly alleged that petitioner No.2 unauthorisedly opened the said account in a fictitious name resembling that of the company of the complainant and with fraudulent and dishonest intention had deposited the amount in this account after getting cheques encashed in his said account, which amounted to defrauding the company, besides revealing offence of cheating.
The quashing of this FIR is prayed on the ground that police at Rohtak would have no territorial jurisdiction to either register the case or to investigate the same. Reference is made to provisions of Section 177 Cr.P.C. and some of the judgments to say that the police at Rohtak would not have any jurisdiction to investigate the case as no cause of action or part of cause of action has arisen at Rohtak for the police to conduct the investigation in the case. Criminal Misc.-M No.26744 of 2007 :4:
Mr.Baldev Singh, Senior counsel appearing for the petitioners has very heavily relied upon the action of the complainant company in filing a civil suit in the High Court of Delhi at New Delhi to say that the complainant itself has conceded that every transaction was held or completed at Delhi and hence the investigation in present FIR could not be continued at Rohtak. The counsel has relied upon Navinchandra N.Majithia Vs. State of Maharashtra, 2000(4) RCR (Criminal) 30 and Y.Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr., 2004(3) Crimes 227 (SC) to urge that ordinarily venue for trial of a crime is the area of jurisdiction in which, on the evidence, facts occur and which are alleged to constitute crime. In Y.Abraham Ajith's case (supra), finding that no cause of action arose within the territorial jurisdiction of the court where the complaint was filed, it was held that the Magistrate at Chennai had no jurisdiction to deal with the matter. The proceedings were accordingly quashed. Reliance is also placed on Karam Chand Vs. Union of India, 2002(3) R.C.R. (Criminal) 586. In this case, it was held that wrong assumption of jurisdiction by a court can be interfered with by the High Court and directions issued to the court not having jurisdiction to refrain from proceeding with the trial.
The pleas raised by the petitioners are strongly opposed by the State as well as the complainant. Mr.R.K.Anand, Senior counsel appearing for the complainant would refer to the civil suit filed by the company in the High Court at Delhi to point out that this suit is filed at Delhi because the relief claimed in the said suit is primarily against the Banks, which are located at Delhi. The main Criminal Misc.-M No.26744 of 2007 :5: grievance of the complainant in the civil suit as per the counsel, is that the banks had wrongly opened this account and had been negligent in permitting deposit of the cheques in the accounts so opened, which were actually meant for the complainant company.
The counsel appearing for the complainant would further contend that investigation can be conducted by the police and courts generally do not interfere in the course of investigation by directing transfer of the same. Submission also is that cause of action or part of cause of action would entitle the complainant to pursue their criminal remedy at Rohtak and, as such, the prayer of the petitioners for quashing of the FIR on the ground of territorial jurisdiction cannot be entertained. In support of his submission, he has placed rather strong reliance on the case of Satvinder Kaur Vs. State (Govt. of NCT of Delhi and another, (1999) 8 SCC 728. The counsel would also refer to the contents of Section 181(4) Cr.P.C. to urge that any criminal offence of misappropriation or criminal breach of trust may be enquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject matter of the offence was received or retained, or was required to be returned or accounted for, by the accused person. The counsel would also refer to the case of Asit Bhattacharjee Vs. M/S. Hanuman Prasad Ojha & Ors., 2007(7) SCALE 241 and some other judgments of this court as well as of some other High Courts.
Every offence is ordinarily to be enquired into and tried by court within whose local jurisdiction it was committed, so says Section 177 Cr.P.C. Section 178 Cr.P.C. would provide some Criminal Misc.-M No.26744 of 2007 :6: exception to this general rule by laying down that when it is uncertain in which of several local areas the offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, then it may be enquired into or tried by court having jurisdiction over any of such local areas. Section 179 Cr.P.C. would make another exception to the general rule and it provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, then the offence may be inquired or tried by court within whose local jurisdiction such thing has been done or such consequence has ensued. Then comes to the provisions of Section 181 Cr.P.C. In regard to place of trial in case of certain offences. Section 181(4) Cr.P.C. reads as under:-
"Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person."
Thus, in cases of criminal misappropriation or criminal breach of trust, the offences may be tried by a court within whose jurisdiction the offence was committed or any part of property which is subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. This provision Criminal Misc.-M No.26744 of 2007 :7: may be relevant because as per the complaint, petitioner No.2 was required to return the cheques at Rohtak or in any case was required to account for these cheques at Rohtak.
It is to be seen if the police at Rohtak would have any jurisdiction to register this case and investigate the same. The provisions, as noted above, are basically relating to the place of trial and have apparently may not have relevance to determine the right of the police to investigate a case upon registration of FIR. The Hon'ble Supreme Court in case of Satvinder Kaur (supra) has gone into this aspect in detail. This was a case where the wife was thrown out of the matrimonial home in Patiala, where a complaint was also lodged, but had subsequently come to stay with her parents at Delhi. Complaints were also lodged against the husband at Women Cell, Delhi leading to registering of an FIR. The High Court at Delhi came to hold that SHO, Police Station, Pachim Vihar, New Delhi would have no territorial jurisdiction to entertain and investigate the FIR lodged by Satvinder Kaur appellant because the alleged dowry items were entrusted to her husband at Patiala and, thus, cause of action accordingly arose at Patiala. The Supreme Court while reversing this view of the Delhi High Court termed the same as illegal and erroneous because of the following reasons:-
(1)The SHO has statutory authority under Section 156 Cr.P.C. to investigate any cognizable case for which the FIR is lodged, (2) At the stage of investigation, there is no question of interference under Section 482 Cr.P.C. on the ground Criminal Misc.-M No.26744 of 2007 :8: that the investigating officer has no territorial jurisdiction, (3) After investigation is over, if the investigating officer arrives at the conclusion that the cause of action for lodging FIR has not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under Section 173 Cr.P.C. and to forward the case to the Magistrate empowered to take cognizance of the offence.
While dealing with the aspect of territorial jurisdiction to hold enquiry, the Hon'ble Supreme Court observed as under:-
"It is true that territorial jurisdiction also is prescribed under sub-section (1) of Section 156 to the extent that the officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII. However, sub- section (2) of Section 156 makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that Criminal Misc.-M No.26744 of 2007 :9: there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it."
It is also observed that there is no absolute prohibition that the offence committed beyond local territorial jurisdiction cannot be investigated, enquired or tried. This has been so held by making reference to Sections 177 to 188, as have already been referred to above. A reading of the aforesaid sections would make it clear that Section 177 provides for "ordinary" place of enquiry or trial, whereas Section 178 would take care of an eventuality when it is uncertain in which of the several local areas an offence was committed. Where an offence was committed partly in one local area and partly in another, and where it consisted of several acts done in different local areas, the same could be enquired into or tried by a court having jurisdiction over any of such local areas. A view, thus, is possible that at the stage of investigation, it cannot be held that SHO does not have territorial jurisdiction to investigate the crime. It is by now fully settled that the functions of judiciary and police are complementary Criminal Misc.-M No.26744 of 2007 : 10 : and are not overlapping. Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561-A, which makes a provision of inherent powers, has given increased powers to the court which it did not possess before that section was enacted. This is not so, as was observed by Privy Council in case of King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18. As held in this case, the section gives no new powers and it only provides that those which the court already inherently possesses, has been preserved and this section is inserted, lest it be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Act. The Hon'ble Supreme Court has further held in the case of Satvinder Kaur (supra) that legal position is well settled that if an offence is disclosed the court will not normally interfere within an investigation into the case and will permit investigation into the offence alleged to be committed. Following observations would be relevant in this regard:-
"Further, the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a Criminal Misc.-M No.26744 of 2007 : 11 : long course of decisions of this Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations."
Ultimately, the Hon'ble Supreme Court held that the High Court of Delhi has committed grave error while accepting the contention that Investigating Officer has no jurisdiction to investigate the matter. In this regard, it is held as under:-
"Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several Criminal Misc.-M No.26744 of 2007 : 12 : acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156 (2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction."
In the case of Asit Bhattacharjee (supra), the Hon'ble Supreme Court has not applied the term `cause of action' as is understood in its ordinary parlance in stricto sensu to bring home charge of a criminal offence. This may be so noticed from the following observations:-
"The necessary ingredients for proving a criminal offence must exist in a complaint petition. Such ingredients of offence must be referable to the places where the cause of action in regard to commission of offence has arisen. A cause of action as understood in its ordinary parlance may be relevant for exercise of jurisdiction under Clause (2) of Article 226 of the Constitution of India but its definition stricto sensu may not be applicable for the purpose of bringing home a charge of criminal offence. Criminal Misc.-M No.26744 of 2007 : 13 :
The application filed by the appellant under Section 156 (3) of the Code of Criminal Procedure disclosed commission of a large number of offences. The fact that major part of the offences took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the appellant- Company was committed within the jurisdiction of the said court, the High Court of Allahabad should not have interfered in the matter. Respondents themselves have referred to the Minutes of Meeting held on 18.05.2000 between the representatives of the appellant and Mr.Hanuman Prasad Ojha at the registered office of the appellant wherein inter alia it was agreed..........." This court in the case of Dharam Pal Goyal and Ors.v. State of Haryana and Anr., 2006(3) PLR 682 has held that FIR cannot be quashed on the ground that police station did not have territorial jurisdiction to investigate the offence. It has been so held by following ratio of law laid down in Satvinder Kaur's case (supra). Reference has also been made to the case of Md.Yousuf v. State of A.P., 2005(1) R.C.R.(Crl.) 399.
It can, thus, be said that FIR cannot be ordered to be quashed only on the ground that a particular police station would not have a territorial jurisdiction. The ratio of law laid down in Navinchandra N.Majithia's case (supra), would not strictly apply to the facts of the present case. This was a case where FIR was lodged Criminal Misc.-M No.26744 of 2007 : 14 : at Shillong, but part of cause of action arose at Bombay. The Hon'ble Supreme Court in this case held that Bombay High Court has a jurisdiction to entertain the petition under Article 226 of the Constitution. The case of Y.Abraham Ajith (supra) relied upon by the counsel for the petitioners was where the question of taking cognizance by the Magistrate in a complaint case was an issue before the court and in this context it has been held that ordinary venue for trial of crime is the area of jurisdiction in which on evidence, facts occur and which alleged to constitute the crime. The issue whether the investigation can be interfered with in exercise of jurisdiction under Section 482 Cr.P.C. never arose before the Hon'ble Supreme Court in this case. The present case appears to be squarely covered by the ratio of law laid down in Satvinder Kaur's case (supra).
The functions of the judiciary and the police being complementary, would be another reason which would be a reason enough for the Court to desist from exercising its discretion under Section 482 Cr.P.C. to quash the FIR. Even in State of W.B. Vs.S.N.Basak, AIR 1963 SC 447, Hob'le Supreme Court did not approve the view taken by the High Court that the statutory powers of investigation given to the police under Chapter XIV were not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and hence the investigation was without jurisdiction. Reversing this view, the Hon'ble Supreme Court held that powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Misc.-M No.26744 of 2007 : 15 : Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156 with the investigation into such offences and under these sections the police has statutorily right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statuary power of the police to investigate cannot be interfered with by exercise of power under Section 439 or under the inherent power of the court under Section 561-A (now 482 Cr.P.C.) Recently in case of State of Bihar and another Vs.P.P.Sharma, IAS and another, 1992 Supp (1) Supreme Court Cases 222, the Hon'ble Supreme Court has held that function of judiciary in the course of police investigation is complementary and except to the extent expressly prohibited by the Code, the Evidence Act and the Constitution, full freedom should be accorded to the police to conduct investigation and collect evidence. I am, thus, of the considered view that the petitioners are not entitled to seek quashing of the FIR on the ground that the police at Rohtak would not have territorial jurisdiction to investigate the matter. The provisions of Section 177 Cr.P.C. onwards can also not be ignored. The matter can be investigated and tried even in the territory of the court where the effect has ensued. There is no merit in the plea raised. The petition is, thus, dismissed.
November 04, 2008 ( RANJIT SINGH )
ramesh JUDGE
Criminal Misc.-M No.26744 of 2007 : 16 :