Karnataka High Court
M/S. India Brewery And Distillery ... vs J. Srinivas on 22 September, 1997
Equivalent citations: ILR1998KAR110, 1998(1)KARLJ420
Author: H.N. Narayan
Bench: H.N. Narayan
ORDER
1. This revision is directed against the order of the IV Additional Chief Metropolitan Magistrate, Bangalore, Mr. P.V. Singri, allowing the application filed by the accused under Section 210, Criminal Procedure Code and staying further investigation of the case referred to by the Court. Undisputed facts are these --That the petitioner has presented a private complaint under Section 200, Criminal Procedure Code before the learned Chief Metropolitan Magistrate, alleging offences punishable under Sections 406, 408, 409, 465, 467, 468, 471, 420 and 477A read with Section 34 of I.P.C. The complaint was made against its own employees including the accused.
2. The learned Magistrate has referred the said complaint for investigation acting under Section 156(3), Criminal Procedure Code. The J.P. Nagar Police on receipt of this complaint, referred to by Court for investigation, registered a criminal case in Crime No. 4 of 1996 for the above said offences and the FIR was duly submitted to the jurisdictional Magistrate.
3. After the matter was investigated, the J.P. Nagar Police duly submitted a 'B' report and the same was challenged by the complainant by filing a protest petition. The learned Magistrate was not persuaded to accept this 'B' report. On reconsideration of the 'B' report and the protest petition, the learned Chief Metropolitan Magistrate referred the said matter again for further investigation through the Deputy Commissioner, Central Crime Branch, Bangalore. The said complaint came to be registered as Crime No. 349 of 1997 in Indiranagar Police Station.
4. The accused has challenged the investigation in Crime No, 349 of 1997 of Indiranagar Police Station by filing a Criminal Petition No. 1838 of 1997 under Section 482, Criminal Procedure Code. This Court has dismissed the petition on the ground that 'that was not the stage for quashing the investigation and that the accused is always at liberty to move the Magistrate for necessary redressal'. Therefore, the accused has filed an application under Section 210, Criminal Procedure Code to stay further proceedings and investigation in Crime No. 349 of 1997 of Indiranagar Police Station until a final report is filed in Crime No. 581 of 1995 of J.P. Nagar Police Station.
5. The jurisdiction of the Magistrate under Section 210(1) and (2), Criminal Procedure Code was vehemently canvassed before the learned Magistrate and the accused was able to persuade the learned Magistrate to stay not only the proceedings before him but, also the further investigation which was referred to the Central Crime Branch. Aggrieved by the impugned order passed by the learned Chief Metropolitan Magistrate, the complainant has challenged the same in this revision on the ground of illegality and legal infirmity.
6. Sri C.V. Nagesh, learned Counsel for the petitioner has two contentions to urge in this revision. The first contention is that there was no parallel investigation pending against the complainant in respect of the same offence. Therefore, the learned Magistrate has initially erred in accepting the contentions raised in this behalf by the accused. His second contention is that the Trial Magistrate has no jurisdiction to stay the investigation when there is no enquiry or trial pending before him, the Trial Court has granted what the accused had failed to secure from the High Court. Therefore, it is submitted that the impugned order suffers from manifest illegality and it is liable to be set aside.
7. The learned Counsel for the respondent relying upon the ruling of the Kerala High Court in Sidhan and Others v State of Kerala , has submitted that the Magistrate was within his powers to stay further investigation under Section 210, Criminal Procedure Code. He has also relied upon the investigation pending against the complainant himself in Crime No. 581 of 1995 before the J.P. Nagar Police and therefore attempted to justify the impugned order. In the light of these contentions, two points arise for my consideration in this revision. They are:
(1) Whether the learned Magistrate has jurisdiction to stay further investigation when there is no enquiry or trial pending before him?
(2) If so, whether the learned Magistrate exercised its jurisdiction judicially and properly?
(3) What order?
Regarding Point No. 1: There is not much dispute regarding the registration of the case against the complainant in Crime No. 581 of 1995 of J.P. Nagar Police Station. That is a complaint filed by the Excise Department against the petitioner herein for non-payment of excise duties. But, the complaint presented before the learned Chief Metropolitan Magistrate was against the employees of the complainant distillery factory for offences of forgery, cheating, criminal breach of trust, misappropriation, falsification of accounts etc., Since the allegations could not have been inquired into by the learned Magistrate, he rightly thought it fit to refer the complaint under Section 156(3), Criminal Procedure Code to the jurisdictional police. The J.P. Nagar Police has submitted a 'B' report stating that no offence was made out. The protest petition was filed by the complainant to the 'B' report which was accepted and the learned Magistrate has directed further investigation by a responsible and Superior Police Officer i.e., the Deputy Commissioner, Central Crime Branch having regard to the nature of allegations and the huge amount involved and alleged against the accused.
8. The argument of the learned Counsel for the accused-respondent is that the accused in Crime No. 581 of 1995 has made this protest petition and the learned Magistrate could not have acted upon it. This contention cannot be accepted as the accused in Crime No. 581 of 1995 is the complainant himself who is the Managing Director of the complainant company. There is nothing wrong in filing a protest petition by the complainant represented by its Managing Director himself. He is not debarred by making such protest petition only because the Excise Department has initiated criminal action against him in some other crime for his default in paying the excise duties. The investigation of the said crime against the complainant has no relevance whatsoever in investigating the present complaint. They are two distinct and separate complaints.
9. The learned Magistrate has not applied his mind to these facts which in my opinion must have very much weighed with him to come to the present decision.
10. However, the important contention raised in this revision for consideration of this Court is whether the learned Magistrate has jurisdiction to pass such an order? This contention can be disposed off by stating that the learned Magistrate has no such jurisdiction more so, when no enquiry or trial is pending before him in respect of same allegation or offence.
11. Section 210, Criminal Procedure Code, provides for procedure to be followed when there is a complaint case and police investigation in respect of the same offences. Section 210, Criminal Procedure Code, reads as follows:
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the Police Officer conducting the investigation.
(2) If a report is made by the Investigating Police Officer under Section 173 and on such report cognisance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted in a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognisance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
12. From the facts placed before the learned Magistrate, it cannot be stated that it was made to appear before the learned Magistrate that during the course of the inquiry or trial held by him, that the investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him. The learned Magistrate has not yet taken cognisance of the offence alleged in the complaint. The matter is still in the investigation stage. There is no inquiry or trial pending before the Magistrate. If that be so, there was no good ground for the learned Magistrate to stay the police investigation of the complaint. It is incomprehensible as to how the learned Magistrate has reached this conclusion to stay proceedings before him and also the investigation. Virtually, he has stayed the whole proceedings keeping everything at rest in eternity. He could not have exercised such powers under sub-sections (1) and (2) of Section 210, Criminal Procedure Code. It is clear illegality committed by the learned Magistrate. This could not have been done by a senior Magistrate of the city, if he had read the relevant provisions carefully. It is rightly canvassed by the learned Counsel for the petitioner that -the learned Magistrate has virtually quietened the investigation and the proceedings, if any, pending before him and there was nothing for anybody to do in the matter and it was for the complainant ultimately to bring to the notice of this Court, the illegality committed by the Magistrate in such a serious matter.
13. The order of the learned Magistrate referring the complaint for Investigation under Section 156(3), Criminal Procedure Code is a judicial order. He cannot recall the order by way of stay in purported exercise of his power under Section 210, Criminal Procedure Code. A Magistrate has no inherent power to stay/recall his own order. Therefore, the order suffers from manifest illegality and is liable to be set aside. Hence the revision petition is allowed. The order of the Chief Metropolitan Magistrate is set aside. The Central Crime Branch is directed to proceed with the investigation of Crime No. 349 of 1997 of Indiranagar Police Station.