Calcutta High Court
Upasana Finance Limited vs S.N. Bagla And Company And Ors. on 21 July, 2005
Equivalent citations: 2005(4)CHN39, 2006CRILJ833, 2006 CRI. L. J. 833, 2006 (3) AKAR (NOC) 354 (CAL), (2005) 4 CAL HN 39, (2006) 2 ALLCRILR 720
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. These two mandamus appeals were heard analogously as those are interlinked and by a common judgment dated December 10, 2003, a learned Judge of this Court allowed the two writ applications filed by the respondents in these two appeals thereby quashing a First Information Report lodged by the police consequent to an order passed by the learned Metropolitan Magistrate, 11th Court, Saidapet, Chennai, under Section 156(3) of the Code of Criminal Procedure on an application of complaint filed by the appellant herein.
2. The appellant herein filed a complaint under Section 200 read with section 156(3) of the Code of Criminal Procedure before the 11th Court of Metropolitan Magistrate at Saidapet, Chennai, against the private respondents herein for a direction upon the Additional Deputy Commissioner of Police, General Crime, Egmore, Chennai-14 to register the case and to investigate tie same by forwarding the complaint under section 156(3) of the Code of Criminal Procedure. The learned Metropolitan Magistrate allowed such prayer and accordingly, passed an order in terms of section 156(3) of the Code by directing the police to treat the said complaint as an FIR.
3. On the basis of such an order, the Additional Inspector of Police, Central Crime Branch, Chennai-8 registered a case being Miscellaneous Criminal No. 81 of 2001 under sections 403/406/417/418/420/448/468 read with Section 120(B) of the Indian Penal Code and took up the investigation.
4. The Administrative Inspector, Central Crime Branch, Egmore, Madras having directed the accused persons to appear before him for the purpose of the aforesaid investigation, two different writ applications were filed by the accused persons mentioned in the said complaint thereby praying for the following relief:
"(a) A writ in the nature of certiorari do issue calling upon the respondent Nos. 1 to 4 to transmit the complaint of the respondent No. 5 and the First Information Report registered as X Cr. No. 83 of 2001 and all records in connection therewith so that the same may be quashed and conscionable justice done;
(b) A writ in the nature of prohibition do issue prohibiting the respondent Nos. 1l to 4 from taking any step or further steps on the basis of the First Information Report dated 9th February, 2001;
(c) Alternatively, a writ in the nature of mandamus do issue commanding the respondents Nos. 1 to 4 to transmit the FIR dated 9th February, 2001 to the appropriate Police Station in Calcutta;
(d) Rule NISI in terms of prayers above;
(e) Injunction restraining the respondent Nos. 1 to 5 and their men, agents and assigns from taking any step or further step on the basis of the First Information Report dated 9th February, 2001 or any other similar document;
(f) Ad interim order in terms of prayers above;
(g) Such further or other order or orders be passed and/or directions be given as this Hon'ble Court may deem fit and proper."
5. The grounds taken in those two writ applications in substance were that the FIR did not disclose commission of any cognizable offence by the writ petitioners and that the subject-matter of FIR was matter of civil disputes pending for adjudication before this High Court in the Original Side. It was further contended that the FIR drawn on the basis of compliant filed by the appellant herein was mala fide with the sole object of harassing the writ petitioners resulting in abuse of process of Court.
6. Those two writ applications were contested not only by the Police Authority but also the present appellant. According to the contesting respondents there was no just ground for entertaining the writ applications at the stage of investigation. Over and above, it was specifically contended before the learned Single Judge that the FIR having been lodged pursuant to a direction given by the Metropolitan Magistrate, Chennai, this Court had no territorial jurisdiction to entertain those writ applications as no part of cause of action had arisen within the territorial limit of this Court.
7. By the order impugned in these two appeals, the learned Single Judge has quashed the FIR on the ground that the appellant should not have lodged the FIR in Chennai; on the contrary, it should have pursued the complaint filed in the Bhowanipur Police Station, Calcutta. According to the learned Single Judge, the respondent, the police authority, should not have entertained the said FIR and they should have concluded by reading the FIR that there was nothing for them to investigate in relation to the alleged criminal offence as suitable complaint had already been lodged with the appropriate Police Station at Calcutta.
8. The learned Single Judge further overruled the objection of territorial jurisdiction raised by the appellant by relying upon the decision of the Supreme Court in the case of Nabin Chandra N. Majithia v. State of Maharastra, .
9. Being dissatisfied, the complainant has filed these two mandamus appeals before this Court.
10. Mr. Dutta, the learned senior advocate appearing on behalf of the appellant in these two appeals at the very outset vehemently contended before us that the FIR having been lodged in the State of Tamil Nadu on the basis of an order passed by the learned Metropolitan Magistrate, Chennai under section 156(3) of the Code of Criminal Procedure, this Court had no territorial jurisdiction to entertain writ applications under Article 226 of the Constitution of India for quashing of such FIR. Mr. Dutta even on merit contended that a Writ Court cannot quash an FIR at the stage of investigation. Mr. Dutta points out that if all the averments made in the complaint at this stage are treated to be true, those allegations definitely make out offences under various provisions of the Indian Penal Code and as such, the learned Single Judge erred in law in quashing the FIR. Mr. Dutta submits that at this stage there was no scope of entering into the merit of the allegations. Mr. Dutta further submits that the learned Single Judge erred in law in holding that a complaint had already been lodged before the Bhowanipur Police Station over the self-same offence by totally misreading the materials on record.
11. Mr. Dutta concluded his argument on July 5, 2005 and on that day the learned advocate appearing on behalf of the writ petitioners prayed for adjournment for the purpose of giving reply to the submissions made by Mr. Dutta.
12. On the next date, when the matters came up for further hearing, both Mr. Dutta, the learned advocate appearing on behalf of the appellant and Mr. Mitra, the learned advocate appearing on behalf of the respondents submitted that the parties had compromised the matter and as such, the appellant was not willing to proceed with these two appeals.
13. Mr. Mitra, the learned senior counsel appearing on behalf, of the writ petitioners strenuously contended before us that a writ proceeding under Article 226 of the Constitution of India is in the nature of a civil proceeding and consequently, if against an order passed by a Writ Court an appeal is preferred and at the time of hearing of such appeal, the appellant decides not to press such appeal, the Appellate Court is left with no other alternative but to dismiss the same for non-prosecution. Mr. Mitra, therefore, prayed for dismissing the appeals for non-prosecution.
14. After hearing the learned counsel for the parties and after going through the materials on record we are, however, unable to agree with the contention of the learned counsel for the parties that this Court cannot enter into the merit of the appeals when the appellant has decided not to press these appeals after having compromised the disputes with the accused.
15. It is true that according to the Writ Rules framed by this Court, in proceedings under writ jurisdiction, the procedure provided with regard to suit shall be followed as far as it may be practicable subject to the other provisions of the rules. In our opinion, by taking aid of that provision, it cannot be legitimately contended that even if an FIR alleging commission of cognizable offences which are not compoundable at the instance of the complainant is quashed by a Writ Court and an appeal is preferred by the complainant against such order, and after conclusion of submission of the learned counsel for the appellant, if the appellant decides not to press the appeal due to compromise effected during the pendency of the appeal, the Appellate Court is bound to dismiss the appeal for non-prosecution.
16. As indicated earlier, in the writ proceedings before this Court the subject-matter was in substance an order passed under section 156(3) of the Code of Criminal Procedure by the Metropolitan Magistrate, Madras relating to the alleged offences under various sections of the Indian Penal Code most of which are not compoundable at the instance of the parties but can be compounded only with the permission of the Court dealing with those offences. One of the offences involved in this case viz. offence under section 468 of the Indian Penal Code is not at all compoundable. If in a writ application, such an FIR is quashed, the appeal that will be preferred against such order of quashing is, in a sense, akin to an appeal against an order of acquittal and in such an appeal, the principle of section 386 of the Code of Criminal Procedure should be applicable. According to the said provision, no appeal whether against acquittal or against conviction, can be dismissed for non-prosecution. Once the Court admits the appeal and issues notice, upon the respondents, such an appeal is to be heard on merit irrespective of the fact that the appellant is unwilling to press the appeal.
17. In our view, in the present writ appeals, the subject-matter being quashing of an order passed in terms of section 156(3) of the Code and the consequent FIR, we should be governed not by the provisions of the Code of Civil Procedure but by those of the Code of Criminal Procedure. If a complaint is lodged under Section 200 read with section 156(3) of the Code and consequently an order of investigation is passed by the concerned Magistrate by treating the complaint as FIR and subsequently, if the complainant does not press the said complaint, such decision of the complainant will have no effect on the investigation commenced on the basis of the order passed by the learned Magistrate. Once an order is passed on such complaint for investigation, the same must proceed in accordance with law.
18. We have already pointed out that offences complained of here are not compoundable at the instance of the parties and one of the offences is not even compoundable with the permission of the Court before which the prosecution is pending and in such a situation, even if, the complainant decides not to proceed with the appeals, it is for the Appellate Court to decide on merit whether the order passed by the learned Single Judge quashing the FIR was correct or not.
19. We have, therefore, overruled the contentions of learned counsel for the parties that we should dismiss this appeal for non-prosecution as the parties settled their disputes by making payment of money to the complainant. We must not lose sight of the fact that the nature of offence alleged here, if found to be true, are not only committed against the complainant but also against the society at large and that is why the Code of Criminal Procedure has not sanctioned compounding of such offences except with the leave of the Court, even if, the complainant is satisfied by compromise. One of the offences alleged herein viz. offence under section 468 of the IPC is not even compoundable with the permission of the Court like the offence of murder or rape.
20. So far the merit of appeal is concerned, although Mr. Mitra, the learned counsel appearing on behalf of the appellant tried to convince us that this Court has territorial jurisdiction to quash the FIR, lodged in Chennai because part of cause of action of filing FIR arose in Calcutta, we are not impressed by such submission.
21. According to the Article 226(2) of the Constitution of India a Writ Court of a State can entertain an application under Article 226 of the Constitution even though the respondents are stationed beyond its territorial limit provided a part of the cause of action of filing of such writ application had arisen within the territorial limit of such Court.
22. In this case, if we read the writ applications as a whole we find that cause of action for filing of those writ applications arose because of lodging of the FIR. But curiously enough, although, such FIR was lodged on the basis of an order passed by a Metropolitan Magistrate in terms of section 156(3) of the Code of Criminal Procedure, the writ petitioner did not pray for quashing of such order nor was there any grievance against such order by pointing out illegality committed by the said learned Metropolitan Magistrate in the writ application. According to the Code of Criminal Procedure, if an offence is committed in different parts of the country, trial can be held at any of such places but we should not confuse the places of commissions of crimes with the cause of action of these two writ applications which had arisen wholly within the State of Tamil Nadu. We have already pointed out that the cause of action of filing these two writ applications is the order under section 156(3) of the Code by the Metropolitan Magistrate, Chennai and the consequential initiation of the investigation after lodging of the formal FIR in accordance with the order of the learned Magistrate. Once an order under section 156(3) of the Code is passed by the Magistrate directing the Officer-in-Charge of the police station to treat the complaint as FIR, the said police officer is bound to comply with such order, to investigate and, ultimately to submit report before the concerned Magistrate. Therefore, in these two writ applications, the writ petitioners cannot have any grievance against the police authorities but their real grievance should be against the order of the Magistrate and such order was passed in the State of Tamil Nadu. No part of cause of action for filing of these writ applications therefore arose within the State of West Bengal and as such, this Court could not entertain those writ applications. The decision relied upon by the learned Single Judge, namely, in the case of Nabin Chandra N. Majithia v. State of Maharashtra, , was one where there was no order by any Judicial Magistrate for treating the complaint as FIR and to investigate. In the said very decision the Supreme Court pointed out that so far the question of territorial jurisdiction with reference to a criminal offence is concerned it is primarily the place where the alleged offence is committed. In the case before us, money according to the complaint was given to the writ petitioners in Chennai and as such, the offence was definitely committed in Chennai. The Supreme Court pointed out that in the said case, the High Court failed to consider all the relevant facts necessary to arrive at a proper decision on the question of maintainability of the writ petition on the ground of lack of territorial jurisdiction because the Court based its decision on the sole consideration that the complainant had filed the complaint at Shillong in the Stale of Meghalaya and the petitioner had prayed for quashing the said complaint in the State of Maharashtra. The High Court, according to the Apex Court, did not also consider the alternative prayer made in the writ petition that a writ of mandamus should be issued to the State of Meghalaya to transfer the investigation to the police station at Mumbai.
23. In our view, the principles laid down in that decision cannot have any application to a case where a complaint seeking intervention in terms of section 200 of the Code of Criminal Procedure, has been converted to an FIR by virtue of an order passed by a Magistrate under section 156(3) of the Code of Criminal Procedure. Once any FIR is lodged pursuant to an order under section 156(3) of the Code, such order can be challenged before that High Court which has power of superintendence over the said Magistrate and the same cannot be impugned before any other High Court.
24. This Court has no power of superintendence over the learned Metropolitan Magistrate, Chennai and as such, his order is subject to scrutiny only by the Madras High Court or the appropriate Courts prescribed in the Code of Criminal Procedure.
25. We are, therefore, convinced that learned Single Judge lacked territorial jurisdiction to entertain the writ petitions the sole object of which was to obtain an order of quashing of the order passed by the learned Magistrate in Chennai.
26. Therefore, on the ground of want of territorial jurisdiction alone, the order passed by the learned Single Judge should be quashed. Since, we have come to the conclusion that we have no territorial jurisdiction to scrutinize the order passed by the learned Metropolitan Magistrate, Chennai. we refrain from entering into the other questions whether the complaint ought to have been filed before Bhowanipur Police Station or whether the complaint was a mala fide one. Mr. Mitra after making a futile attempt to defend the order of the learned Single Judge on the question of territorial jurisdiction, prayed for withdrawal of the writ application with liberty to file fresh apposite applications before appropriate forum.
27. Since, these writ applications were allowed by usurpation of jurisdiction against the order of the learned Magistrate at Chennai, we are constrained to set aside the orders impugned only on the ground of want of territorial jurisdiction. We, however, make it clear that we have not gone into the other points raised by the writ petitioners and this order will not stand in the way of the writ petitioners in challenging the order of the learned Magistrate in accordance with law before appropriate forum. Both the appeals are, thus, allowed. The orders passed by the learned Single Judge quashing the FIR which was registered consequent to the order passed by the learned Metropolitan Magistrate arc set aside. In the facts and circumstances, there will be, however, no order as to costs.
28. Let this order be immediately communicated to the Police Authority at Chennai.
Rajendra Nath Sinha, J.
29. I agree.