Calcutta High Court
Sk. Murshidul Islam vs State Of West Bengal And Anr. on 3 February, 1997
Equivalent citations: 1997CRILJ1757
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. This is an application under Section 482 Cr. P. C. for quashing the proceeding and the investigation arising out of the FIR in Karaya P. S. case No. 76 dated 6-4-95 under Sections 420/468/471 / 406/120B IPC. This petition was initially moved before a learned Single Judge namely, A. B. Mukherjee, J. on 19-8-96. The learned Judge inter alia directed that the investigation of the case would proceed in accordance with law but there would not be any arrest of the accused (petitioner) without the leave of the Court on condition that the petitioner would allow himself to be interrogated in course of the investigation at all reasonable times. On 10-10-96 the matter came up before another learned single Judge, namely, S. K. Tiwari, J. but the learned Judge released the matter and directed for being placed before the appropriate Bench. On 14-10-1996 another learned single Judge, N.K. Bhattacharyya, J. for reasons stated in the order of the said date, directed for placing the matter before the learned Chief Justice so that the matter could be assigned to a Division Bench. The matter was then directed by the Hon'ble The Chief Justice on 15-11-1996 to be placed before the appropriate Division Bench. The appropriate Division Bench comprising of S. K. Mookherjee and R. Bhattacharyya, JJ. on 2-12-1996 released the matter as one of the learned Judges was not inclined to hear the same on personal ground. Thereafter on 5th December, 1996 the matter was assigned to the Division Bench presided over by one of us (G. R. Bhattacharjee, J.) and that is how the matter has come up before this Bench.
2. The complainant Anwarul Islam who is the O. P. No. 2 herein filed a petition of complaint before the learned Chief Judicial Magistrate, Alipore against his two brothers the accused No. 1 Sk. Murshidul Islam (the petitioner herein) and accused No. 2 Sk. Jiaul Islam and others. The said petition of complaint was forwarded to the police under Section 156(3) Cr. P. C. and the police, treating the same as FIR, started the said Karaya P. S. case No. 76 dated 6-4-95 under the aforesaid sections of the Indian Penal Code. Since in the present revisional application under Section 482 Cr.P. C. the petitioner-accused obtained an ex parte order from the learned single Judge to the effect that the petitioner-accused shall not be arrested without the leave of the Court, the complainant opposite party No. 2 has also filed an application for recalling the said order and both revisional application under Section 482 Cr. P. C. and the said recalling application have been heard together and are being disposed of by this order. It is the contention of the petitioner in this revisional application that the complaint which was treated as FIR does not, even if taken at its face value, prima facie make out any offence and as such the investigation started thereon and the entire proceedings should be quashed. The complainant opposite party No. 2 as well as the State opposes the revisional application for quashing the proceeding.
3. The complainant, the accused No. 1 and the accused No. 2 are brothers. The complainant and the accused No. 1 who is the petitioner herein are the partners of M/s. S. M. Islam and Associates which is a registered partnership firm. According to the averments made in the petition of complaint the said firm carries on business in the nature of contract which includes refractory lining and other works. It is also the case in the petition of complaint that in course of business the aforesaid firm received an order in January 1994 from M/s. Wellman Incandescent India Ltd. for the installation of refractories in their Coke Oven Plant, and in course of business a sum of Rs. 4,49.999 was due to the said partnership firm but in order to grab the payment illegally both the accused persons forged the signature of the petitioner on the letter-head of the aforesaid firm and succeeded in getting the payment of Rs. 2,25,000 directly in the name of live accused No. 2 on the basis of forged and fabricated letter submitted to M/s. Wellman Incandescent India Ltd. It is further stated in the petition of complaint that the accused persons with knowledge that the complainant's signature in the concerned letter was not genuine used the same as genuine. The allegation in the complaint further is that the accused persons having dominion over the aforesaid amount of Rs. 2,25,000 dishonestly misappropriated the same by converting the same to their own use and thereby committed criminal breach of trust in respect of the same and caused loss to the petitioner's firm. In paragraph 10 of the petition of complaint it is categorically stated that the accused persons thus committed forgery and by practicing fraud cheated the petitioner and thereby committed offence punishable under different sections of the Indian Penal Code mentioned therein. The petitioner-accused No. 1 wants in this revisional proceeding to quash the investigation proceedings started on the basis of the said petition of complaint which was treated as FIR, mainly on the ground that the allegations made in the petition of complaint, even if taken at their face value, do not make out any cognizable offence. In our considered view however this argument is not tenable. As we have seen the petition of complaint contains categorical averments that the accused persons forged the signature of the complainant on a letter under the letter-head of the partnership firm of which the petitioner is a partner and used that forged and fabricated letter and thereby obtained an amount of Rs. 2,25,000 from Wellman Incandescent India Ltd., in favour of the accused No. 2. If these allegations are taken at face value, in that event certainly it cannot be said that no offence has been made out for in vestigation. The questions whether there is arbitration clause in the partnership deed and whether the accused No. 2 as sub-contractor of the partnership firm was entitled to the said amount are not of much consequence at this stage. There is clear allegation of forgery of complainant's signature by the accused persons and of obtaining money on the basis of alleged fabricated letter allegedly containing forged signature of the complainant. In view of such clear allegations in the complaint it cannot be said that no prima facie case of any offence has been made out in the complaint for starting any investigation. The question whether M/s. Wellman Incandescent India Ltd. has made any complaint is also inconsequential in the present context.
4. The learned Advocate for the opposite party relies upon a decision of this Court in Star Iron Works Pvt. Ltd. v. Bureau of Investigation, (1993) 97 Cal WN 500, in support of his argument that where the FIR prima facie discloses commission of a cognizable offence the Court should not in ordinary circumstances quash the same of the investigation started thereon. He also refers to a Special Bench decision of this Court in Pawan Kr. Puja v. S.P., CBI 1995, Cal Cr.LR (Cal) 1 : (1995 Cri LJ 3726), where it has been held that the Court during the investigation stage cannot embark upon a parallel or pre-emptive investigation for finding out whether the allegations made in the FIR are true and sustainable which is a function which the police investigation is precisely required to undertake and the Court at such stage cannot stay the police investigation and itself embark upon a separate investigation with reference to the different materials that may be referred to by an accused. Since in the present case it is clearly alleged in the petition of complaint which has been treated as FIR that the petitioner's signature was forged in a letter and by using the said letter money was obtained, the same clearly discloses the commission of a cognizable offence and therefore it cannot be said that the petition of complaint which is treated as FIR does not disclose prima facie commission of any cognizable offence. Since the petition of complaint prima facie discloses commission of cognizable offence when taken at its face value, there should not be any order for throttling the investigation at this stage. The question whether any cognizable offence was really committed is of course a separate matter and that is required to be ascertained by proper investigation. Then again if there has been really commission of any cognizable offence the extent of such offence and the persons who might have committed such offence are also matters which are to be ascertained through police investigation. This Court at this stage should not undertake any parallel investigation as to whether any, cognizable offence was at all committed although prima facie allegations in the FIR are there and whether any particular person is involved or associated therewith in any culpable manner. These are matters which will have to be left to the police investigation that has been undertaken on the basis of the FIR. The learned Advocate for the complainant in support of his argument that this is not a fit case for quashing the investigation also relies upon the decision of the Supreme Court in Janata Dal v. H.S. Chowdhary, and State of Bihar v. P.P. Sharma, .
5. On the other hand the learned Advocate for the petitioner relies upon two decisions of the Supreme Court, one in State of Karnataka v. L. Muniswamy, and the other in Central Bureau of Investigation v. Duncans Agro Industries Ltd., 1996 Cal Cri LR (SC) 320 : (1996 Cri LJ 3501). We have carefully gone through the said decisions and we are of the opinion that the said decisions do not help the petitioner in this case. In State of Karnataka v. L. Muniswamy (supra) the matter that fell for consideration before the Supreme Court was whether the High Court was justified in quashing the proceeding against certain accused persons at the stage of consideration of charge after the case was committed to the Court of session for trial. The matter that was under consideration was whether the materials against the particular accused persons were sufficient for framing charge against them after the case was committed for trial to the Court of Session. Obviously at that stage the investigation was already complete, charge-sheet submitted and the case committed for trial to the Court of Session. At that stage the question was whether there were sufficient materials against the accused persons for framing charge against them. Since there were no materials against them it was considered to be a fit case for quashing the proceedings at that stage. In the present case however the investigation has not yet been completed and therefore the question of consideration of materials collected during investigation is not yet ripe. But even then it may be pointed out here that the result of the investigation so far made in this case perhaps does not go in favour of the petitioner as it appears from the pointed observations made by the Division Bench while rejecting the petition for anticipatory bail. However here now we are concerned not with the result of investigation, but with what is projected by the FIR. In Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996 Cri LJ 3501) (supra) the Supreme Court however held that the quashing of the complaint by the High Court was not unjustified because the Supreme Court by examining the averments made in the complaint found that no case for police investigation had been made out. Moreover it was also found that the matter was compromised between the concerned parties in a Civil Suit and the case was basically a matter of Civil Dispute. These were the broad circumstances dealt with by the Supreme Court in the said decision. In our present case, as we have found, the petition of complaint prima facie discloses cognizable offence. This is therefore riot at all a fit case for quashing the FIR or the police investigation started and continuing on the basis of that FIR, under Section 482 Cr. P. C. in exercise of the inherent power of this Court.
6. There is also another aspect of the matter. The present petitioner also earlier moved an application under Section 438 Cr. P. C. for anticipatory bail in connection with the present investigation and the learned Sessions Judge rejected the petitioner's prayer for anticipatory bail by order dated 8-3-96 after consideration of the materials collected during the investigation. Thereafter the petitioner moved another application for anticipatory bail before this Court in connection with the self-same case and the said application for anticipatory bail was also rejected by a Division Bench comprising R. Bhattacharyya and D. B. Dutta, JJ. by order dated the 11th April, 1996. While rejecting the petitioner's prayer for anticipatory bail the Division Bench also made the following observations :-
We have carefully gone through the case diary and the petition for anticipatory bail, and it prima facie looms large that the offence under Sections 420/460/471/406 and 120B of the Indian Penal Code have been prima facie committed. The learned Advocate for the State has targeted the pseudo claim of the petitioner as his punching bag. The anticipatory bail can only be sustained when the allegations are prima facie stricken with falsehood, frivolity and vagueness. The present claim of the petitioner prima facie discloses commission of the aforesaid offences having the ring of truth. The petitioner cannot ride on the back of anticipatory bail when the allegations do not proceed from falsehood. There is no profile of the case for anticipatory bail of the petitioner who has polluted the truth to harvest relief under the fold of Section 438 of the Criminal Procedure Code. The grant of anticipatory bail, therefore, would be an intrusion on investigation. Thus, in all fitness of things, we cannot but fold the relief for anticipatory bail and the application, thus stands rejected.
In view of the aforesaid observations made by the Division Bench on consideration of the materials so far collected and included in the case diary by investigation, it has been very strongly argued by the learned Advocate for the opposite-party-complainant that the petitioner-accused cannot now invite this Court under Section 482 Cr. P. C. to hold that no case of any cognizable offence has been even made out prima facie against the petitioner. It is true that the power of the High Court under Section 482 Cr. P. C. to quash a proceeding is indeed very wide and plannery and therefore there is no scope for argument that the mere rejection of a petition for bail or anticipatory bail will disqualify the petitioner from moving the High Court under Section 482 Cr.P. C. for quashing proceeding on fit grounds. Normally in disposing of a petition for bail or anticipatory bail the courts do not make observation of precipitative nature regarding the merit of the ease of the same may have unnecessary or undesirable repercussions elsewhere beyond the arena of bail or anticipatory bail. But if the Court on any particular occasion has chosen to make any observation touching the merit of the case while disposing of any application for bail or anticipatory bail the ' same should not be withheld by the party adversely affected thereby while approaching the Court thereafter for relief under Section 482 Cr. P. C. More particularly, where the petitioner in any petition under Section 482 Cr. P. C. for quashing any FIR, investigation or proceeding prays for an interim order for staying the investigation or proceeding or for restraining arrest, he must as a rule disclose in the petition whether he applied for bail or anticipatory bail and what has been the fate of the same so that the Court while considering the question whether any interim order should be passed under Section 482 Cr. P. C. may also consider at the same time whether the petitioner has invited the inherent power of the Court with any oblique purpose of merely gaining an advantage which he failed to obtain under the appropriate provisions of law and whether the move of the petitioner itself constitutes an abuse of the process of the Court. The Court in exercise of its inherent power under Section 482 Cr. P. C. is indeed free to pass such orders as may be necessary to prevent abuse of the process of Court or otherwise to secure the ends of justice, but it is the duty of the party invoking this inherent jurisdiction of the Court to disclose full facts to the Court so that the Court may dispassionately judge that the order sought for would not itself defeat the ends of justice or lead to an abuse of the process of the Court contrary to the purpose for which this inherent power of the Court exists.
7. In the present case the petitioner in His application under Section 482 Cr. P. C. did not at all make any disclosure of the fact that his two successive applications for anticipatory bail under Section 438 Cr. P. C., one before the Sessions Judge and the other before the Division Bench of this Court were rejected after consideration of the materials included in the case diary during the investigation not to speak of disclosing the observation of the Division Bench of this Court that grant of anticipatory bail would be an intrusion on investigation. In all fairness the petitioner should have disclosed these orders of courts in his application for quashing the FIR and the investigation which he did not do, particularly when he prayed for interim order staying the investigation. It is one of the cardinal principles of justice that one who approaches the Court inviting the extra ordinary jurisdiction to quash a proceeding in exercise of its inherent power must come with clean hand and make a full disclosure of all the relevant facts and circumstances associated with the matter which in the present case the petitioner did not do. In this case even before serving a copy of the petition under Section 482 Cr. P. C. upon the opposite party-complainant the petitioner obtained from a learned Single Judge of this Court an interim order to the effect that there shall not be any arrest of the accused without the leave of this Court on condition that he shall allow himself to be interrogated in course of the investigation at all reasonable times. This interim order has virtually the effect of granting the petitioner-accused the same protection against arrest and custody which the Division Bench in disposing of the application for anticipatory bail refused to grant on consideration of the materials on record and with definite observations patently unfavourable to the petitioner-accused. We are not for a moment suggesting that the Court while dealing with the matter under Section 482 Cr. P. C. cannot pass any interim order of the nature passed in the matter by the learned single Judge. Rather what we want to say is that the earlier order of the Deivision Bench while rejecting the prayer for anticipatory bail should have been disclosed before the Court dealing with the matter under Section 482 Cr. P. C. so that the Court might also take the. same into consideration while deciding the question of interim order. The learned Advocate for the petitioner argues that it was not necessary for the petitioner to disclose in the present petition the fact that the prayer for anticipatory bail was rejected earlier, because the petitioner did not, in terms pray for any interim order in the case regarding the arrest of the petitioner during investigation. In our considered view this argument is rather superficial. In the present petition the petitioner has prayed for an interim order that all further proceedings and investigation arising out of the concerned P. S. case might be stayed. Arrest is indeed a part of the process of investigation and it requires no much deliberation to appreciate that if the investigation is stayed by an interim order any move for arrest also automatically becomes stayed. Therefore the prayer for interim order of stay of investigation includes in its fold a latent prayer for stay of arrest also, particularly where the petitioner-accused is yet to be arrested in connection with the investigation sought to be stayed by an interim order. The learned Judge however did not grant stay of the entire investigation but granted interim stay of arrest without the , leave of the Court during investigation. It might have been that the learned Judge, in view of the observations of the Division Bench made while disposing of the anticipatory bail, would have considered it not fit to grant any interim order of stay of arrest or it might have been that the learned Judge would still have, granted the interim order of stay of arrest as done, but that would have been a matter for the learned Judge to decide in the available perspective. But to keep the Court in dark about the order and the observations made by a Division Bench in connection with the anticipatory bail of the self-same petitioner in the self-same matter is to deprive the Court of the available perspective which is indeed deplorable so far as the role of the petitioner is concerned. Since the interim order, in our opinion, was obtained without making full disclosure of things relevant in this connection, that would have been a good ground for recalling the said interim order as prayed for. However since on merit also we find that this is not a fit case for quashing the FIR or investigation inasmuch as it cannot be said that the FIR does not prima facie disclose any cognizable offence, it is not necessary for us now to recall the interim order because the interim order itself will automatically come to an end with the rejection of the application for quashing the proceeding. The petition for quashing the proceeding including the FIR and investigation is rejected for reasons discussed earlier, and therewith interim order of stay of arrest also stands vacated automatically. Both the petition under Section 482 Cr.P. C. and the vacating application stand disposed of accordingly.
Debi Prosad Sircar-I, J.
8. I agree.