Calcutta High Court
Dinesh Dalmia vs The Commissioner Of Police And Ors. on 17 January, 2006
Equivalent citations: (2006)2CALLT68(HC)
JUDGMENT Pratap Kumar Roy, J.
1. These two writ applications are taken up for hearing analogously. Originally these writ applications were filed before High Court at Judicature of Madras. In the both the two writ petitions the petitioners is the same person. The writ petition No. W.P. 1583 of 2004 was registered by the Registry of Calcutta High Court, which was originally filed in Madras High Court being W.P. No. 44714 of 2002 and the writ petition No. W.P. 1584 of 2004 was registered by the High Court at Calcutta, which was originally filed in the High Court at Madras being W.P. No. 44701 of 2002. In W.P. 1583 of 2004, the petitioner has prayed for quashing of his name from the First Information Report wherein his name appears in the status of accused in Park Street Police Station/D.D. Case No. 300 dated 23rd September, 2001 under Sections 120B/420/409/385/511 IPC and in the writ petition W.P. 1584 of 2004 petitioner has prayed for quashing of his name from the First Information Report wherein his name appears as accused in Hare Street Police Station/D.D. Case No. 476 dated 24th September, 2002 under Sections 120B/420/409/467/468/471/477A IPC.
2. In the High Court at Madras in the said writ petitions petitioner prayed for an interlocutory order restraining the respondents from arresting the petitioner in connection with the said two cases. Subsequently, by the order dated 28th March, 2003 both these writ petitions were dismissed on the sole ground of lack of territorial jurisdiction of that Court by Hon'ble Mr. Justice P. Sathasivam of High Court at Madras. The two writ appeals were preferred being Nos. 1737 and 1738 of 2003 assailing the said order of His Lordship P. Sathasivam before the Hon'ble Division Bench of Madras High Court by the accused writ petitioner Dinesh Dalmia. Said two appeals were taken up for admission by the said Division Bench of Madras High Court on 27th June, 2003 when an interim order dated 27th June, 2003 restraining the respondents to arrest the writ petitioner accused Dinesh Dalmia was passed. The respondents filed affidavit-in-opposition before the Hon'ble Division Bench with reference to the said two appeals and prayed for setting aside the interim order dated 27th June, 2003. On 11th July, 2003 the Division Bench of Madras High Court adjourned the matter till 27th August, 2003 and at this juncture on 25th July, 2003 Special Leave Petitions being No. 15629 and 15630 of 2003 were filed assailing the interim order dated 27th June, 2003 passed by the Hon'ble Division Bench of Madras High Court aforesaid. On 29th July, 2003 interlocutory applications were filed praying transfer of both the said two appeals as filed by the accused writ petitioner Dinesh Dalmia in the High Court at Madras to Calcutta High Court before the Supreme Court of India. On 8th December, 2003 the Hon'ble Supreme Court of India stayed the operation of the order dated 27th June, 2003 passed by the Division Bench of Madras High Court. This order was subsequently clarified on 12th January, 2004 by the Apex Court to this effect: "It is clarified that by interim order dated 8th December, 2003, police investigation was not stayed and the same shall continue". On 8th March, 2004 the Hon'ble Division Bench of the Apex Court consisting of the Hon'ble Mr. Justice S. Rajendra Babu and the Hon'ble Mr. Justice G.P. Mathur was pleased to transfer both the said two writ petitions as originally filed before the High Court at Madras to the High Court at Calcutta for decision on merit upon passing the direction that the interim order dated 8th December, 2003 along with the order dated 12th January, 2004 would continue to operate until the High Court at Calcutta considers prayer of interim relief and/or passes any appropriate order by adjudicating writ petitions on merit as the case may be.
3. The transferred writ petitions ultimately were registered in the High Court at Calcutta being W.P. No. 1583 and 1584 of 2004 respectively as already mentioned. On 17th December, 2004 these two writ petitions were listed before the Hon'ble Justice Pinaki Chandra Ghose of High Court at Calcutta, when His Lordship was pleased to release those matters on personal ground. Thereafter, both the two writ petitions were assigned before this Court by the Hon'ble The Chief Justice of High Court, Calcutta.
4. Initially the writ petitioners in both the two writ petitions prayed for appropriate interim relief restraining the respondents from arresting the writ petitioner/accused in connection with the said two criminal cases as already referred to, but this Court decided to dispose of the entire matter on merits upon final hearing and as such direction for affidavits by the respective parties was passed. In pursuance thereof, affidavit-in-opposition were filed in both the two writ petitions by the respondents and reply thereof also have been filed by the writ petitioner in both the two writ petitions.
5. On perusal of the writ petitions as filed before the High Court at Madras, this Court noticed that relevant documents as referred to in the said writ petitions were not annexed and accordingly have granted to file the respective annexure, namely, the First Information Reports (FIR) and other relevant documents including the different orders passed by the competent Criminal Courts at Madras. Parties filed those documents.
6. From the respective documents as filed, following facts are revealed.
(1) That the application for appropriate orders under Section 156(3) of the Code of Criminal Procedure praying necessary direction to Officer-in-Charge, Park Street Police Station within the city of Kolkata, State of West Bengal to treat the complaint as FIR and to investigate thereto was filed by Stock Holding Corporation of India Limited through its authorized representative Sri Arup Sankar Bagchi being duly authorized in terms of the resolution of the Board of Directors of the Stock Holding Corporation of India Limited, a company incorporated under the Companies Act, 1956, before the Court of learned Chief Metropolitan Magistrate, Calcutta and in terms of the order passed by the said Court, Park Street Police Station/D.D. Case No. 300 dated 23rd September, 2001 under Sections 120B/420/409/385/511 IPC was registered, wherein the writ petitioner Dinesh Dalmia of writ petition No. W.P. 1583 of 2004 of the High Court at Calcutta was shown as accused No. 10. The copy of complaint, which was treated as FIR has been filed before this Court, which has been kept on record.
(2) That on the same date 9th September, 2002 one Sri P.K. Roy, Secretary, Calcutta Stock Exchange Association Limited lodged a complaint to the Deputy Commissioner of Police, Detective Department, Kolkata having office at 18, Lalbazar Street, Kolkata, a copy of which as produced before this Court, has been kept with the record.
On the basis of the aforesaid complaint, Hare Street Police Station/D.D. Case No. 476 dated 24th September, 2002 under Sections 120B/420/409/467/468/471/477A IPC was started against all accused persons including the present writ petitioner Dinesh Dalmia of W.P. No. 1584 of 2004, whose name appeared at Serial No. 14 of the said First Information Report.
(3) On 26th September, 2002, Criminal Original Petition No. 240/ 2002 was filed by the writ petitioner accused Dinesh Dalmia, a named accused in the FIR in connection with Hare Street Police Station Case No. 476 dated 24th September, 2002 in the High Court at Madras praying anticipatory bail, which was allowed directing the accused Dinesh Dalmia to appear before the Court of competent jurisdiction within six weeks.
(4) On 17th October, 2002. accused Dinesh Dalmia, the writ petitioner herein moved the Madras High Court again praying anticipatory bail in connection with Park Street Police Station Case No. 300 dated 23rd September, 2001 aforesaid by filing Criminal Original Petition No. 26004 in the High Court at Madras, which was allowed by the interim order granting anticipatory bail with a direction to appear before the appropriate Court having jurisdiction within six weeks.
(5) On 18th November, 2002, another Criminal Original Petition No. 28241/2002 was filed by the writ petitioner in the High Court at Madras praying anticipatory bail in connection with Hare Street Police Station Case No. 476 dated 24th September, 2002 and on 18th November, 2002, same was allowed by Hon'ble Justice A. Pakiaraj with identical direction as aforesaid directing the accused to appear before the appropriate Court.
(6) Similarly, with reference to criminal case being Park Street Police Station Case No. 300 dated 23rd September. 2001, accused Dinesh Dalmia again moved an interim anticipatory bail application registered as Criminal Original Petition No. 28657/ 2002 of the High Court at Madras and on 20th November, 2002, Hon'ble Justice A. Pakiaraj of High Court at Madras passed order granting anticipatory bail.
(7) Subsequently again on 11th December. 2002, another Criminal Original Petition No. 30899/2002 was filed by accused Dinesh Dalmia in the High Court at Madras praying anticipatory bail in connection with said Hare Street Police Station Case No. 476 dated 24th September, 2002. which was allowed by the order dated 11th December, 2002 by Hon'ble Justice A. Pakiaraj of High Court at Madras.
(8) W.P. Misc. Petition No. 65434/2002 in writ petition No. 44701/ 2002 of High Court at Madras was filed by accused Dinesh Dalmia praying necessary order restraining the respondents from arresting the accused Dinesh Dalmia and by the order dated 12th December, 2002, Hon'ble Justice R. Balasubramaniam of High Court at Madras passed the order restraining the respondents from taking any coercive steps against the accused Dinesh Dalmia including his arrest.
(9) On 27th, January, 2003, the Investigating Agency of the aforesaid two criminal cases approached Regional Passport Officer, Chennai to impound the passport and travel documents of accused Dinesh Dalmia, which prompted the said accused Dinesh Dalmia to move an application before the High Court at Madras praying necessary permission to leave India for his stay at U.S.A. and by the order dated 28th January, 2003, said accused was allowed to leave India.
(10) On 28th March. 2003, the prosecution of the aforesaid two criminal cases made a prayer in the High Court at Madras for quashing all orders as passed in the writ applications and other miscellaneous applications and by the order dated 28th March, 2003, Hon'ble Justice P. Sathasivam dismissed the writ applications and other miscellaneous petitions on the ground of lack of territorial jurisdiction.
(11) On 28th April. 2003, learned Chief Metropolitan Magistrate, Kolkata. issued proclamation against accused Dinesh Dalmia requiring his appearance on 30th May, 2003 and thereafter by the order dated 8th May. 2003 said learned Magistrate issued a rule upon Regional Passport Officer, Chennai to impound the passport and travel documents of accused Dinesh Dalmia as per provision under Section 10(3)(h) of Passport Act, 1967. The order dated 28th April, 2003 of the said learned Magistrate was assailed by filing a revision petition dated 28th May, 2003 by the writ petitioner, which was taken up for hearing on 30th June, 2003 by the learned City Session Judge, 5th Court at Kolkata when the impugned order was upheld.
(12) On 6th June, 2003, Regional Passport Officer, Chennai issued a circular directing all Airport Authorities, Check Posts and concerned Investigating Agencies to impound the passport and travel documents of accused Dinesh Dalmia, which became the subject matter of challenge in the pending writ appeals as earlier mentioned in the High Court at Madras when by the order dated 27th June, 2003. the Division Bench of Madras High Court passed an unconditional interim stay of arrest of the accused Dinesh Dalmia.
(13) The matter ultimately went to the Supreme Court in the Special Leave Petitions as already mentioned earlier and the Hon'ble Apex Court stayed all the orders of Madras High Court on 8th December, 2003. On 18th December, 2003 learned Chief Metropolitan Magistrate, Kolkata issued an open non-bailable warrant of arrest against accused Dinesh Dalmia for the purpose of issuance of "Red Corner Notice" through INTERPOL, but this order was recalled on 9th January, 2004, by the learned Chief Metropolitan Magistrate on the ground that the Apex Court of India has already stayed the Investigation of the criminal cases in the respective Special Leave Petitions its moved by the prosecution. However, this order of the Apex Court was subsequently clarified on 12th January, 2004 directing the continuation of the investigation as mentioned earlier. The learned Chief Metropolitan Magistrate again was approached by the respondent prosecution after the clarification order of the Apex Court was passed and a "Red Corner Notice" was issued on 30th January, 2005 through the INTERPOL Wing of CBI. On 6th July, 2005, CBI got an information from the INTERPOL that accused Dinesh Dalmia was found in U.S.A. but his Attorney therein submitted before the INTERPOL at Washington that all the charges against him in India have already been dismissed. The prosecution, however, has communicated the latest position of the case, namely, pendency of the writ applications before this Court to the CBI for necessary reference to the INTERPOL.
(14) On 17th December, 2004 the accused Dinesh Dalmia preferred anticipatory bail applications registered as Criminal Original Petition No. 38657/2004 and 38658/2004 praying anticipatory bail in connection to the aforesaid two criminal cases and the Hon'ble Mr. Justice R. Balasubramanian of High Court at Madras granted anticipatory bail directing accused Dinesh Dalmia to appear before the appropriate Court having jurisdiction over the criminal cases by 31st January, 2005. But accused writ petitioner as yet has not surrendered before the appropriate Criminal Court.
7. Learned Senior Advocate Mr. Samaraditya Pal appearing for the writ petitioner has strongly contended that on the basis of the complaints as ultimately culminated to FIR registering the aforesaid criminal cases did not disclose any materials against the writ petitioner Mr. Dalmia who is Managing Director of a private limited company controlled under the Companies Act inviting the Court's attention to the contents of the FIR. It is submitted that one Mr. Harish Chandra Biyani, a registered broker of Calcutta Stock Exchange and two Directors of Biyani's Securities Private Limited, namely, Aloke Biyani and Ravindra Biyani deposited 10 lakh shares of DSQ Software Limited, wherein Mr. Dinesh Dalmia is the Managing Director towards their liabilities with the exchange, which, however, was found as not valid securities since the said shares were declared void by the Securities and Exchange Board of India due to gross irregularities made by DSQ Software Limited at the time of their issuance, which cannot be construed as criminal liability of Mr. Dalmia, Managing Director of DSQ Software Limited. The main contention of learned Senior Advocate Mr. Pal that if the shares of the company is deposited by any Stock Broker, who is running business in the Stock Exchange would not cast liability upon company's Managing Director even if it is assumed that those shares were declared void by the Securities and Exchange Board of India beforehand. The criminal liability, even if any, for depositing the said void shares of DSQ Software Company absolutely rests upon the concerned Broker, who submitted those shares to discharge his liability but the same cannot invite the criminal liability of the Managing Director of a company, whose shares were submitted.
8. It is further contended that in the FIR, save and except the contention that the Biyani's Securities Private Limited represented by its Directors Shri Aloke Biyani and Shri Ravindra Biyani including Shri Harish Chandra Biyani despite full knowledge that said shares were issued in violation of rules of SEBI in connivance with the DSQ Software Limited and its group as the DSQ Software Limited are the clients of HCB and BSPL deposited the void shares, no other materials has been mentioned in the FIR against Mr. Dalmia, Managing Director of DSQ Software Limited. With that contention it has been urged that it is a fit case to quash the name of Mr. Dalmia from the FIR. Learned Senior Advocate Mr. Pal further submits that on the face of the FIR, there is no materials to connect Mr. Dalmia, who is Managing Director of DSQ Software Limited. Learned Senior Advocate Mr. Pal submits that bye-laws and regulations approved by the Security and Exchange Board of India provides the provision about the Settlement of Guarantee Fund of Calcutta Stock Exchange, which under Clause (3) provided, inter alia, that a fund named as "Settlement Guarantee Fund" was created to safeguard the active members of C-Star System in Calcutta Stock Exchange, so that in the event of any bona fide default by any active member on C-Star System in Calcutta Stock Exchange, the amount could be paid from the Settlement Guarantee Fund. It is submitted that under the said regulation, as soon as the default was detected, the Biyani Group, the concerned Stock Broker, got adjustment of the amount from the Settlement Guarantee Fund, which clearly is suggestive of the fact that there was a bona fide transaction by the members of the Stock Exchange, namely, the Biyani Group. Learned Senior Advocate Mr. Pal strongly relied upon the Clause (3) of the said Settlement Guarantee Fund as provided in the bye-laws and regulations of the Calcutta Stock Exchange Association Limited duly approved by Securities and Exchange Board of India. On that submission it has been contended by the learned Senior Advocate Mr. Pal that allegation against the Biyani Group including Biyani's Securities Private Limited and Shri Harish Chandra Biyani that having knowledge about the void share, the same were deposited to the concerned Stock Exchange did not invite any criminal liability as under the Settlement Guarantee Fund defaulted amount was adjusted from the said Fund on considering the transaction as bona fide transaction, which is the condition precedent of applicability of said Clause (3). The Clause (3) as referred to by learned Senior Advocate Mr. Pal reads to this effect:
3. Settlement Guarantee Fund:
Settlement Guarantee Fund" means the Calcutta Stock Exchange Settlement Guarantee Fund established and maintained in accordance with the provisions of these Bye-laws for the purpose of guaranteeing trades and transactions in securities by active member on C-STAR System in Calcutta Stock Exchange. It includes the corpus and all other donations, contributions, levies, charges and incomes and properties of SFG to guarantee settlement of deals between the members of the Exchange. Subject to the other provisions of the Rules, Bye-laws and Regulations of the Exchange, the objects of the fund shall be to guarantee, in accordance with the Rules Bye-laws and Regulations of the Exchange, the settlement of bona fide transactions of members of the Exchange inter-se which form part of the Exchange's settlement system so as to endeavour to ensure timely completion of settlements on the Exchange and thereby protect the interest of the investors on the Exchange and the members of the Exchange and thereby also inculcate confidence in the minds of investors regarding the expeditious completion of settlements on the Exchange and support the development of the Stock market.
9. It is contended accordingly by the learned Senior Advocate Mr. Pal that in terms of the conditions as stipulated to provide the Settlement Guarantee Fund, it is accordingly clear that settlement of deal was qualified as a bonafide deal and for that reason from the said Settlement Guarantee Fund, the amount as identified as shortfall due to the fact that the Share Certificate of DSQ Software Limited as were deposited by the Biyani Group ultimately found void, was duly cleared from said fund. For that reason even if the Share Certificates already were declared as void, prima facie there could not be any element to attract the criminal proceeding against the accused writ petitioner Mr. Dalmia.
10. This writ application has been opposed by the State respondents and the Investigating Agency. Learned Senior Advocate Mr. Bikash Ranjan Bhattacharya submits on production of the case records of the criminal proceedings that there are sufficient materials against Mr. Dalmia as reflected from the statement of the other co-accused and independent witnesses recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. The records also have been placed before this Court for perusal. It is vehemently contended that the criminal proceedings are now at the initial stage of investigation and there are enough materials against the accused writ petitioner. It is contended that it is not a fit case for quashing the name of accused petitioner on the settled legal position of the law. It is further asserted strongly that Mr. Dalmia and the Biyani Group conspired with each other to submit the fake Share Certificates, which were already standing as void and it was within the knowledge of Mr. Dalmia as Mr. Dalmia had the full knowledge of such transaction as reflected from the statements under Section 161 recorded by the Investigating Officer.
11. Having regard to such state of affairs, the Court has now to consider whether prima facie case has been made out for quashing the name of the accused writ petitioner from the aforesaid two criminal proceedings as are now at the investigation stage in terms of the provision of the Criminal Procedure Code.
12. Before adverting that issue, the settled legal position in terms of the Judgments of the Apex Court on the issue of consideration of the materials to quash any FIR and/or to quash the name of any accused person from such FIR, which are the guiding principle to adjudicate this case, are being now discussed.
13. The cases, namely, State of Haryana and Ors. v. Bhajan Lal and Ors. , State of West Bengal and Ors. v. Simpan Kumar Guha and Ors. , a Judgment of the Apex Court consisting of Hon'ble Three Judges, State of Bihar and Anr. v. Shri P.P. Sharma and Anr. , Ajay Mitra v. State of M.P. and Ors. and B.S. Joshi and Ors. v. State of Haryana and Anr., are the cases in this field.
14. In Bhajan Lal (supra) the Apex Court has stipulated the guidelines by detailing the grounds on which the Court will interfere with the prosecution of a criminal case by quashing First Information Report and/or quashing the mime of my accused person from such FIR. The guidelines are stipulated in para 102 of the said report, which reads to this effect:
In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
15. In paragraph 103 of the report Bhajan Lal (supra) it has been declared by the Apex Court that the power of quashing should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases.
It has been further settled thereto that Court would not embark upon an enquiry as to the reliability or correctness of allegations mentioned in the FIR. In the Bhajan Lal (supra) the Apex Court considered in depth the Judgments earlier passed by the Apex Court on that issue, namely, Emperor v. Khwaja Nazir Ahmed , RP Kapur v. State of Punjab . The Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal and Ors. , Kurukshetra University and Anr. v. State of Haryana and Anr. , State of Bihar and Anr. v. J.A.C. Saidanha and Ors. , State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. , Smt. Nagawwa v. Veeranna Shwalingappa Konjalgi and Ors. , Pratibha Rani v. Suraj Kumar and Anr. , Madhavrao Jiwajirao Scindia and Ors. v. Sambhujirao Chandrojirao Angre and Ors. and State of Bihar v. Murad Ali Khan and Ors. .
16. In the case Emperor (supra), the legal point was settled to this effect: "if no cognizable offence is disclosed and still more if no offence of any kind is disclosed the 'police would have no authority to undertake an investigation". In R.P. Kapur (supra) it is stated "if no offence disclosed on FIR at its face value, criminal proceeding cannot follow". In S.J.V. Sharma (supra), it is stated "if mala fide proved, police has no power to investigate". In Kurukshetra University (supra) Apex Court had cautioned that "High Court should exercise power sparingly to quash any criminal proceeding". In J.A.C. Saldanha (supra) the Apex Court held that "High Court on facts of the case committed grave error to quash the proceeding". In Swapan Kumar Guha (supra) it is held "if FIR does not disclose commission of a cognizable offence High Court would be justified in quashing investigation". In Smt. Nagawwa (supra) it is held "FIR or complaint is the only basis and if no offence is disclosed it could be quashed but Court would not hold any enquiry about correctness of allegation". In Pratibha Rani (supra), para 59 the Court held to this effect:
We now come to the question as to whether or not a clear allegation of entrustment arid misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 Cr PC to quash a 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. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406, IPC are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complaint should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defences that were open to him but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. We have narrated the facts in detail in the earlier part of our Judgment but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under Section 406, IPC against the accused. The important portions of the complaint may be spelt out thus:
(1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage.
(2) that the parents of the appellant spent Rs. 75,000 on the marriage and dowry articles worth Rs. 60,000 (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused 1 to 6 at the time of the Doli on February 5, 1972.
(3) that the articles entrusted to the accused were meant for the exclusive use of the appellant.
(4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala fidely retained by the accused in order to obtain a wrongful gain to themselves and wrongful loss to the appellant.
(5) that on December 11, 1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the appellant.
17. In Madhavrao Jiwajirao Scindia (supra) it is held "uncontroverted allegation if established no offence and no useful purpose will serve then the Court can quash the investigation". In Murad All Khan (supra) the Court held "Court will not enquire about the viability of offence to quash investigation".
18. Having regard to the aforesaid legal position in Bhajan Lal (supra), ratio was summarized by holding, inter alia, that if on the face of the FIR no offence is disclosed, the same could be quashed and Court would not embark upon the viability of evidence and/or enquire into allegation of the matter.
19. On the reflection of the aforesaid legal points, the submission of the learned senior advocate Mr. Pal that as the Settlement Guarantee Fund was released to adjust the shortfall of the amount in view of the fact that the Share Certificates of DSQ was void, which speaks about the bonafide transaction, now cannot be enquired into at the present moment to quash the criminal investigation applying the settled legal position that at this stage, the writ Court will not investigate into the veracity and/or viability of the evidence if any on lengthy argument of the matter and considering the other material papers and documents on that issue.
20. From the FIR the allegation against the DSQ Group as noticed is to this effect: "The Exchange strongly suspects that both Biyani Securities Private Limited represented by its Directors namely Sri Aloke Biyani & Sri Ravindra Biyani and Sri Harish Chandra Biyani had full knowledge that the said shares were issued in violation of the rules of SEBI. as the promoters of DSQ group are the clients of HCB and BSPL having a possible nexus with the company whose shares were actively traded for artificial price movement as explained below. These would ultimately result in their cancellation and was therefore known to them. In spite of such knowledge, the said Biyani Securities Private Limited represented by its directors namely Sri Aloke Biyani & Sri Ravindra Biyani and Sri Harish Chandra Biyani with an ulterior motive to defraud and cheat the exchange, deposited the said shares as security for their outstanding debts knowing fully well that those cannot be valid security for any debt. It is needless to mention that the Exchange would not have accepted the shares had it not been deceived by the Biyanis'. Again it appears from records that the following transactions in DSQ Industries Limited were executed by these members of the Exchange which were later confirmed by the Stock Holding Corporation of India Limited.
21. In the FIR further details has been made about the transactions of DSQ Industries Limited and DSQ Group as dealt with by said Biyani Group. Since from the aforesaid contention as made in the FIR it prima facie reflects that there is a positive allegation against the DSQ Group, DSQ Software and DSQ Industries Limited on issue of deposit of void shares through the Biyani Group, who deposited shares of DSQ Group having knowledge that those shares were not valid and further it is revealed that such activity of depositing of void shares was with the possible nexus with the company whose shares were actively traded for artificial price movement by Biyani Group.
22. Hence, prima facie, this Court is of the view that there is a positive allegation against the DSQ Group and accused writ petitioner being the Managing Director of the said DSQ Group have been shows as an accused in the FIR. Hence, it cannot be said that there is no material disclosing any offence in the FIR.
23. The State respondent and the Investigating Agency have produced the records of the case, namely, the Case Diary. The Court perused the same and identified certain positive allegations against the accused writ petitioner so far as his knowledge of utilizing the void shares for trading and to create an artificial market. This Court is not giving detail particulars of the statements of the witnesses concerned of this case as recorded under Section 161 of the Code of Criminal Procedure for the interest of justice and for effective investigation of the matter. The Court is only recording the fact that there are prima facie materials against the accused petitioner with reference to the commission of the offence as disclosed in the FIR and as it appears from the statement under Section 161 of Criminal Procedure Code. This observation and finding of the Court by looking into the case diary is fortified with the Judgment of the Apex Court passed in the case Bhajan Lal (supra), wherein the Court held that in deciding the writ application the Court has the jurisdiction to look into evidence collected, if the Court considers it fit and proper. Applying that principle Court directed production of Case Diary and the same was perused minutely by this Court to reach the aforesaid conclusion.
24. Learned Advocate for the Investigating Agency and the State respondent has produced a Judgment of this Court passed by M.H.S. Ansari. J. (as His Lordship then was), which was passed in the case B. Virupaksha Goud v. The State of West Bengal and Ors. in Writ Petition No. 2490 of 2002. The Judgment is dated 10th February, 2003. This was a writ application filed by one of the accused B. Virupaksha Goud assailing the same-self criminal proceeding, which is the subject matter of these writ applications and this writ application was rejected by holding that it could not be said that there was no allegation in the impugned FIR, which did not prima facie constitute any offence. Xerox copy of the Judgment as produced is kept with the record.
25. Considering the aforesaid findings and observations, this Court accordingly of the strong opinion that it is not a fit case to interfere with in this application under Article 226 of the Constitution of India to pass necessary order of quashing the name of the writ petitioner accused from the said two criminal proceedings as it cannot be said that there is no allegation on the face of the FIR and/or in the complaint read with statement recorded under Section 161 of the Criminal Procedure Code to reach the conclusion that there was no disclosure of any criminal offence by applying the ratio of the Judgment of the Bhajan Lal (supra), which has settled the legal position.
Having regard to the facts of the case, accordingly, both the two writ applications stand dismissed. However, there will be no order as to cost.
Later:
After the Judgment was delivered, Mr. Pal, senior Advocate, appearing for the accused writ petitioner Mr. Dalmia submits that the accused petitioner on the strength of the order granting anticipatory bail by the Madras High Court may surrender before the competent Court of Law seeking bail and in the event no direction is passed by this Court for consideration of the bail application in accordance with law without being influenced by the Judgment and order as passed by this Court today, the accused petitioner may be prejudiced from getting the appropriate order from the Court of Learned Magistrate wherein the bail application would be filed. The Learned Advocate appearing for the respondent investigating agency submits that the bail application could be considered in accordance with law. Having regard to such state of affairs, this Court feels that an appropriate order is required to be passed to protect the interest of the writ "petitioner, so that his application praying bail is not prejudiced in view of the Judgment as passed by this Court today. The adjudication as has been made by this Court in both these two writ application relates to the issue as to whether the name of the accused writ petitioner could be quashed from the first information" report and while considering the issue the Court has held that prima facie is allegation and that findings and observations of this Court prejudice the writ petitioner's other rights in accordance with law praying his release on bail and in the event such an application is filed without being influenced by the findings and observations as made by this Court, the learned Magistrate having the jurisdiction to deal with the bail application will dispose of the bail application on merits in accordance with law.
It is made clear that the learned Magistrate is the competent authority to decide the bail matter in the event such application is filed in accordance with law.
Xerox certified copy of this Judgment and order be supplied to the parties, if applied for, on urgent basis upon completion of all formalities.
All parties are to act on a xerox signed copy of the operative portion of the Judgment and order on usual undertaking.