Rajasthan High Court - Jaipur
Vinod Baid vs State Of Rajasthan And Anr. on 30 April, 2002
Equivalent citations: 2002(3)WLC628, 2003(3)WLN449
JUDGMENT Khem Chand Sharma, J.
1. These three revision petitions by petitioner Vinod Baid involve more or less similar facts and an identical question of law, therefore, they are being disposed of by a common order.
2. In all these revision petitions, the petitioner has challenged the orders taking cognizance of the offence under Sections 420 and 406, IPC.
3. In Cr. Revision No. 140/2002, a complaint was filed against the petitioner on 26.11.1997 and the learned Chief Judicial Magistrate vide its order dated 1.4.1998 sent the complaint under Section 156(3), CrPC to the concerned police station for investigation. There-upon, FIR was registered on 4.4.1998 and the police after investigation submitted negative report. On a notice having been issued, the complainant Vishnu Swaroop Baldeva filed a protest petition on 2.5.2002 and the learned Chief Judicial Magistrate took cognizance of the offence.
4. In Cr. Revision No. 138/2002, a complaint was filed by complainant Narain Singh against the petitioner on 3.4.2000 and the learned Chief Judicial Magistrate vide its order dated 5.4.2000 sent the complaint under Section 156(3), CrPC to the concerned police station for investigation. There-upon, FIR was registered on 17.4.2000 and the police after investigation submitted negative report on 19.8.2000. On a notice having been issued, the complainant filed protest petition on 28.2.2001 and the learned Chief Judicial Magistrate, on 28.7.2001 ordered that the protest petition be registered as complaint, and ultimately, vide its order dated 21.9.2001 took cognizance of the offence.
5. In Cr. Revision No. 139/2002, a complaint was filed against the petitioner on 3.4.2000 and the learned Chief Judicial Magistrate vide its order dated 5.4.2000 sent the complaint under Section 156(3), CrPC to the concerned police station for investigation. There-upon, FIR was registered on 17.4.2000 and the police after investigation submitted negative report on 19.8.2000. On a notice having been issued, the complainant Santosh Singh filed a protest petition on 28.2.2001 and the learned Chief Judicial Magistrate ordered that protest petition be registered as complaint. Ultimately, the learned Chief Judicial Magistrate vide is order dated 21.9.2001 took cognizance of the offence.
6. Before proceeding further, it may be stated that all the three orders impugned in these revision petitions were earlier challenged before this Court in three different SB Civil Writ Petitions No. 742, 743 and 744 of 2000. These writ petitions were dismissed on 24.1.2002. The petitioner challenged the order dismissing the writ petitions by filing special appeals No. 76, 77 and 78 of 2002. The Division Bench of this Court vide order dated 11.2.2002 ordered for treating these special appeals as Revision Petitions.
7. The revision petitions were admitted on 21.3.2002 and notices were issued to the non-petitioners. On 24.4.2002, the arguments of counsel for the parties were heard and concluded on the same day.
8. In assailing the impugned orders, the first argument advanced by Mr. Milind Gokhle, learned counsel for the petitioners is that the order taking cognizance have been passed at the back of the petitioner without affording him any opportunity of being heard and, therefore, the impugned orders being ex-facie, illegal are liable to be set aside.
9. In considering the above argument, suffice it to say that accused does not come into picture in the matter of taking cognizance. It is the offence, of which cognizance is taken under the provisions of Section 190, CrPC. The Magistrate takes cognizance of an offence and not against any particular accused.
10. It is next contended that the learned trial Court while entertaining complaint, has acted without jurisdiction because the Company Law Board is a competent Court and the Company (PCML) is a registered non-banking financial company being governed by the Reserve Bank of India Act, 1934 and the rules and regulations framed thereunder. Learned counsel has referred Section 450 to indicate that Chapter III-B of RBI Act has an over-riding effect on other laws. Section 45QA of the Act empowers the Company Law Board to order the non-banking financial company to make repayment of deposits. Section 58-B(4-AAA) of RBI prescribes penal consequence for non-compliance with any order made by the Company Law Board under Sub-section (2) of Section 45-QA.
11. Section 58-E of the RBI Act deals with cognizance of offences. It provides that no Court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by an officer of the Bank, generally or specially authorised in writing in this behalf by the Bank, and no Court other than that of a Metropolitan Magistrate or a judicial Magistrate of the First Class or a Court superior thereto shall try any such offence.
12. Per contra, learned counsel for the respondent contended that the above provisions contained in RBI Act creats no bar against taking cognizance of offence under the Indian Penal Code by the Court having criminal jurisdiction.
13. The third argument convassed by the counsel for the petitioner is that in the complaint, the petitioner has been shown as the person representing the Company in the capacity of Chairman and Managing Director, whereas the petitioner is no longer the Chairman and Managing Director of the said Company, as he has resigned from the post on 5.11.1998. In this back-ground, learned counsel submitted that cognizance of offence taken by the learned trial Court against the petitioner was unwarranted.
14. Lastly, it has been contended by the counsel for the petitioner with vehemence that the learned Magistrate has passed the impugned orders taking cognizance of offence on the protest petitions having been filed by the complainants, without observing the procedure laid down in Sections 200 to 204 CrPC. In support of his argument learned counsel has placed reliance on the following observations of the Apex Court in H.S. Bains v. State :
The Magistrate after receiving the police report, may, without issuing process of dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 & 204. Thus, a Magistrate, who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their reports; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
I have considered the above submissions. It is a settled proposition of law that in case if a protest petition is ordered to be treated as a complaint, the Magistrate is under an obligation to proceed further in accordance with the procedure laid down in Sections 200, 202 and 204 of the Criminal Procedure Code.
15. While dealing with the same controversy, their Lordships of the Supreme Court in the case of Ashok v. State of U.P., 1994 CrLJ 2132 have observed as under:
Thus it is clear that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204, CrPC.......".
16. The legal settled position that emerges is that when a Magistrate treats the protest petition as complaint then he has to comply with the provisions of Sections 200, 202 and 204, CrPC.
17. The only question that has to be considered is whether in the cases at hand the protest petitions were treated as complaints. In Cr. Cases No. 1742/2001 and 1743/2001 the protest petitions were ordered to be registered as complaint, whereas in Cr. Case No. 1343/2000, the complainant averred in the protest petition that he wants to proceed with his complaint by examining himself and his witnesses in support thereof. Thus, it is evidence that in all the three criminal cases, the protest petitions were complaints and therefore, the learned Chief Judicial Magistrate was required to proceed in accordance with Sections 200, 202 and 204, CrPC, viz., to record the statements of complainant and his witnesses before passing the impugned orders. The learned Magistrate having failed in doing so, the orders impugned in these revisions petitions deserve to be quashed and set aside only on this ground.
18. Consequently, all the three revision petitions stand allowed, the impugned orders are set aside and the learned trial Court is directed to first comply with the provisions of Sections 200 and 202, CrPC and then to pass a legal order in terms of Section 203 or 204, CrPC. Since the revisions petitions are allowed only on the ground of non-compliance of the provisions of Sections 200 and 202, CrPC before passing the orders taking cognizance, I do not consider it necessary to deal with other arguments advanced before me and referred to hereinabove. However, it is made clear that parties would be at liberty to raise all such grounds before the trial Court, which have been raised before this Court.