Patna High Court
Anil D. Ambani & Anr vs State Of Bihar & Anr on 5 August, 2010
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
Criminal Miscellaneous No. 24154 of 2004
In the matter of an application under Section 482 of the
Criminal Procedure Code.
1. Anil D. Ambani, S/o - Late Shri Dhirubhai H. Ambani,
Address : Maker Chambers IV, Third Floor, 222, Nariman
Point, Mumbai, 400 021.
2. Mukesh D. Ambani, S/o - Late Shri Dhirubhai H. Ambani,
Address : Maker Chambers IV, Third Floor, 222, Nariman
Point, Mumbai, 400 021.
--------------- Petitioners.
Versus
1. The State of Bihar
2. Shobha Jha @ Shobha Mishra, wife of Anil Kumar Mishra, R/o -
226-Patliputra Colony, P.S. Patliputra, P.O. Patna, District
- Patna.
----------- Opposite Parties.
******
For the Petitioners : Shri Y.V. Giri, Sr. Advocate
Shri Manoj Kr. Ambastha, Adv.
For the Opp. Parrty No.2: Shri Arun Kumar Singh, No.2, Adv.
Shri Mahendra Pd. Sinha, Adv.
For the State : Shri Mukeshwar Dayal, APP.
******
PRESENT
HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** Akhilesh Chandra,J. This is an application under Section 482 of the Criminal Procedure Code filed by the two petitioners seeking quashing of entire proceeding of complaint case no. 780(C) of 2004 pending in the court of Sri O.P.Pandey, Judicial Magistrate, 1st Class, Patna including order dated 03.07.2004 taking cognizance for the offences punishable under Section 465, 467, 468, 469, 471 and 120(B) of the Indian Penal Code.
-2-
2. The relevant facts of the case in narrow compass is that opposite party no.2 an practicing advocate of this Court filed the complaint before the Chief Judicial Magistrate, Patna, making against 7 accused persons out of whom respectively petitioner nos. 1 and 2 figured at nos. 4 and 5 in complaint petition in the capacity of Vice-Chairman and Chairman of Reliance Industries Limited.
3. At serial nos. 1,2 and 3 of the complaint petition in the category of accused respectively the Reliance Industries Limited, Reliance Info Com Limited and Reliance Communication Infrastructure Limited appear without any person or authority through whom they are to be represented. Similarly, at serial nos. 6 and 7 respectively verifier of identity/address on customer application form (name not known) and authorized outlet (name not known) figure.
4. The complaint petition filed on 02.04.2004 under sections 465, 467, 468, 469, 471, 506, 511 read with section 384, 500 and 120B of the Indian Penal Code contains statement that opposite party no.2 having 12 -3- years practicing in this Court never owned or possess any cellular phone (Reliance) nor applied for any such connection to the accused persons but had received bills against altogether six mobile connection (Reliance) in the month of September - October 2003, said to have been issued from the accused persons (Reliance). The bills were returned unpaid with assertion that she possesses no such connection, followed by a written protest lodged to the Company through local agent on 09.02.2004 but, ultimately, three legal notices dated 29.03.2004 were received on behalf of accused nos. 1 to 3 by the complainant demanding different amount totaling to a sum of Rs. 1,06,777/- with threats to initiate legal proceedings if the bills are not paid. By way of any documentary evidence copy of notices and the letters were enclosed with complaint petition as Annexure 1 to 1B and 2 respectively.
5. The complainant further being aggrieved by the legal notice felt herself defamed and in paragraph 4, she stated that she is entitled for Rs. 2 lakhs on account of -4- receiving false notice causing mental agony, harassment, torture etc. on the basis of forged and fabricated connections etc.
6. The complainant was sent to the court of Sri O.P. Pandey, Judicial Magistrate for needful under Section 192 of the Criminal Procedure Code, where besides recording statement of complainant, four witnesses were examined stating therein that the complainant had no connection and bill was not proper etc and the court below took cognizance for the offences stated above, only against accused 1 to 5 excluding nos. 6 and 7.
7. From the above, it is crystal clear that the petitioners are only two human being named in the complaint petition, rest are either juristic persons without any representative or unknown agencies/persons.
8. It is contended on behalf of the petitioners that there is no averments in the complaint petition showing any personal wrong done by them and also there is absolutely nothing constituting any offences against them. Rest of the named accused persons are in fact either unrepresented or unknown. The court -5- without proper application of mind took cognizance for the offences. The complaint petition contended nothing but, bald allegations constituting no offence. The notices issued have also been withdrawn, taking into consideration the objections raised on denial of having connection by the O.P. No.2 and police has been informed to find out the culprits. The learned counsel further placed reliance upon various decisions of the Apex Court.
9. On the other hand, learned counsel representing the opposite party while supporting the impugned order and filing of the complaint submitted that the complainant was a victim of forged notice, huge demand on the basis of forged and fabricated documents created against her and the petitioners being the authorities representing the company cannot deny their liability for the wrong committed, but if they have anything to say, they may exercise their rights under Section 239,245 of the Criminal Procedure Code at the time of hearing on the point of charge. None of the documents or supplementary affidavit can be -6- considered at the time of cognizance or charge, where material as provided by the complainant alone are to be considered. Learned counsel for the petitioners relied upon decision of the Apex Court in a case of S.V. Majumdar and others v. Gujarat State Fertilisers Company Limited and another reported in 2005(4) SCC 173 and also in a case of State of Orissa v. Debendra Nath Padhi reported in (2005)1 SCC
568.
10. From the very plain reading of the complaint petition it appears that the followings are to two very basis of the grievances of the complainant:
(a) receiving some bills
followed by notice against
Mobile Connections,
(b) She was not holding the
Connections but connections
were in her name without any
application made by her or
obtaining her signature on
the application form or
producing required relevant
documents.
-7-
11. It is also evident that there is no specific personal allegation against the petitioners or even any other individual is named rather in the list of accused persons at serial nos. 6 and 7 vague and bald statement appears mentioned who have been exonerated by impugned order of taking cognizance but others including the petitioner the only human being are summoned.
12. Summoning of accused in a criminal case is a serious matter, criminal law cannot set into motion as a matter of course, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. The above is the findings of the Apex Court in a case of M/s -8- Pepsi Food Ltd. And another v. Special Judicial Magistrate and others reported in A.I.R.1998 SC 128(1) i.e. one of the several decision placed reliance upon by learned counsel for the petitioners.
13. On receipt of complaint, the competent courts are expected to follow the procedure as contemplated in chapter XV of the Code of Criminal Procedure before issuing process against the named accused persons especially the provisions of Section 202 provides different options to the Magistrate and it reads as such:
"202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint in an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the -9- purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-
section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
- 10 -
(3) If an investigation under sub-section (10 is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
14. Now it is to be seen whether before passing order on the cognizance, court below has discharged his legal responsibility or not in the instant case. As stated above, there is no personal allegation leveled against the two petitioners and there is none else in fact impleaded as human being committing any wrong, rather, the accused at serial nos. 6 and 7 figured as unknown even during inquiry, none of the witnesses have said anything regarding their identity.
15. It was incumbent upon the court receiving the complaint petition to go through the averments made and proceed for inquiry either personally or through any Magistrate, only when it appears that any offence is made out from the bare reading of complaint petition
- 11 -
and during inquiry the materials may be collected to constitute offence and even if there is some discrepancies in identity of either of the accused may be removed during inquiry, but if it seems not possible or difficult, perhaps, this is why law makers have while enacting section 202 in the Criminal Procedure Code made provision of directing the complaint petition for investigation by police, which has wider hands through which wrong doers may be identified.
16. The evidence before the court below during inquiry also does not indicate anything regarding identity of other accused persons, perhaps this is the reason behind exonerating accused nos. 6 and 7. The complainant in reply to the court questions during inquiry has said that the bill was reportedly issued from the office situated at Khetan Market. No personal threat was given to her except sending notice. Her husband as C.W.1 in similar manner states that he has knowledge that SIM Card of Reliance Mobile are issued only after submitting application form affixing photograph. Another witness C.W. 2 being
- 12 -
brother-in-law of the complainant having Reliance Mobile submits about the procedures required for having such connection and states filling of the application form annexing copy of PAN Card, address proof besides payment of advance cheque for three years are must. Last witness Sri Arun Kumar Singh, an Advocate senior of the complainant stated his ignorance about the requirement of residential certificate etc. None has seen the application form etc. or could inquire into the details from the office at Khetan Market, in spite of having knowledge that bill was sent from there. As stated there is nothing mentioned against the petitioners in person. Further in face of Mobile connections appears standing in the name of O.P.No.2 without any other material even prima facie one cannot assume the notice demanding bill against such connection is otherwise wrong.
17. In spite of such discrepancies stated above including absence of any other paper except Annexures (1) and (1B) and (2) aforementioned. The court below decided to proceed against petitioner and three others
- 13 -
exonerating the persons figuring at serial nos. 6 and 7 who could have been real persons involved and required in the instant case, if any wrong is proved committed with the complainant this goes to show that at the time of passing impugned order, the court below failed to discharge the requirements which was accepted from him at the same time I must say that in a judicial proceeding one is expected not to be influenced by status of either of the side/parties.
18. Under normal course, after arriving at such conclusion and finding the case squarely covered under more than one criteria prescribes in the decision of Apex Court in the case of State of Haryana & others v. Choudhary Bhajan Lal & others reported in A.I.R. 1992 SCC 604; The impugned order appears not sustainable.
19. The following seven criteria of cases have been prescribed in Bhajan Lal‟s Case (supra) wherein the court may exercise powers under Article 226 or under Section 482 of the Criminal Procedure Code, any interfere in proceeding relating to cognizable offences
- 14 -
equivalent to abuse of process of any court or otherwise secure ends of justice.
"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 F.I.R. 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
- 15 -
do not disclose the commission of any offence and make out a case against the accused;
4. Where the allegations in the F.I.R. 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 F.I.R. 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
- 16 -
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."
20. But some additional features of this case emerged after invoking jurisdiction of this court compels me to do something more than simply set aside or quash the impugned order, such relevant facts are stated below.
21. The petitioners have by filing supplementary affidavit on 25.08.2004 annexing copy of Sanha No. 390 recorded at Pirbahor Police Station on 10.08.2004, submitted that
- 17 -
they themselves found cheated and accordingly enclosing the copy of the application besides the relevant documents such as copy of PAN Card, pass book besides photograph of the applicants of all the six Reliance Mobile Connections, requested the police to investigate into the matter and find out the wrong doers. It would not be out of place to mention that in all such applications for Mobile connections, copy of pass book of Bank Account of the complainant opposite party no.2 running in Allahabad Bank Patliputra Branch, Patna vide S.B. A/c No. 100182 showing her address Shobha Mishra, C/o - N.K. Jha, R/o - 226, Patliputra Colony, Patna. Besides Permanent Account Number (PAN) APMSN7025J issued by Income Tax Department in the name of opposite party no.2 as Shobha Mishra, daughter of Pankaj Mishra, showing date of birth 11.12.1965 are there.
22. It is also relevant to mention that dated 27.04.2005, by filing counter affidavit enclosing copies of all such documents which were annexed with supplementary affidavit ahovementioned. The opposite party
- 18 -
no.2 had denied her signature on the applications said to have been filed in her name for obtaining connections of Reliance Mobile.
23. During the course of argument when attention of the opposite party no.2 was drawn towards all these materials, counter affidavit has been filed on her behalf enclosing copy of her pass book which tallies at least as regard to account number and her address and she has also filed copy of PAN Card as of own.
24. It is undisputed that one person may have only one PAN Card but here in the instant case there are two PAN Cards in the name of opposite party no.2. Of course, the PAN Card used for getting Mobile Connections bears name of father other than the name appeared in the PAN Card admitted by opposite party no.2, whereon her father name is Nawal Kishore Jha in PAN Card No. ACDPJ880L, contrary to it in the earlier Card (APMSN7025J) father‟s name shown is Pankaj Mishra.
25. Issuance of two PAN Card for one person with some variations reflects against
- 19 -
the working of Income Tax Department also. The materials produced by supplementary affidavit or counter affidavits requires thorough investigation in the matter otherwise, wrong doers cannot be booked for the misdeeds committed by them.
26. Since the petitioners have already by submitting materials and recording Sanha No. 390 informed the police. It is expected that some action must have been taken but, neither sides is in a position to address on the actual state of affairs.
27. By filing supplementary affidavit dt. 31.08.2005 petitioners have also withdrawn the legal notice demands made therein against complainant and when it was brought into notice to the opposite party, it was submitted that at the very initial stage also the petitioners were offering Rs. 50,000/- for the mental agony caused to the complainant being a lawyer receiving the notice, though in a good faith without any evil intention but the offer was not acceptable. During the course of argument, the learned counsel for the petitioners hesitantly conceded that the said
- 20 -
offer is still alive in response, it is submitted that if the offer is enhanced up to three times i.e. Rs. 1,50,000/- the complainant opposite party no.2 may reduce her demand as made in complaint petition of Rs. 2,00,000/- to Rs. 1,50,000/- and get the complaint withdrawn.
28. Such offer and its refusal for realizing a substantial amount especially coming across to the situation that the notices sent to complainant opposite party no.2 were prima facie not baseless rather there was six Mobile Connections standing in her name may be on the basis of some otherwise instrument but unless it is shown or established that such documents in the shape of the application, PAN Card and copy of pass book of account all in the name of complainant opposite party no.2 are created by the persons named as accused on whose behalf the notices were sent. One cannot arrive at the conclusion that notices were sent with malicious intention just in order to defame the complainant who was not even personally known or in their contact.
29. The bare reading of the complaint petition, does not fulfill all such
- 21 -
requirements to be complied with and considered before issuance of process against them.
30. The Apex Court in another case i.e. Punjab National Bank and others v. Surendra Prasad Sinha reported in A.I.R. 1992 SC 1815; has held in para 5 which reads as such:
5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that
- 22 -
stage the Court would be
circumspect and judicious in
exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance."
31. Almost similar view has been taken by the Apex Court in a case in Indra Mohan Goswami and others vs. State of Uttaranchal reported in A.I.R. 2008 SC 251; wherein it has been held the court must ensure that criminal prosecution is not utilized as an instrument of harassment or for seeking private vendetta or with an ulterior motive prosecute the accused.
- 23 -
32. It is true that the petitioners have an opportunity to place their points before the trial court at the stage of 245 Cr.P.C. but, at the same time, the decision of the Apex Court in S.V. Majumdar case (supra) is not applicable in this instant case as the same dealt with the specific provisions of Section 138 and 141 of the Negotiable Instrument Act, wherein in paras 9, 11 and 12 it has been held as such:
"Under the Scheme of the Act " if the person committing an offence under Section 138 of the Act is a Company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to Section 141(1). Whether or not the evidence led would establish the accusations, is a matter for trial. The proviso to sub-section (1) of Section 141 enables the accused to prove his
- 24 -
innocence by discharging the burden which lies on him." Therefore, the High Court was justifying in rejecting the petition filed by the appellant."
33. The submissions of learned counsel for the opposite party that no interference is required by this court rather matter should be left to be decided by trial court at the time of hearing on the point of charge, or during trial, but this submission is not acceptable. In view of the decision of the Apex Court in a case of G. Sagar Suri and another v. State of U.P. and another reported in A.I.R. 2000 SCC 754; wherein after discussing other decisions including case of Ashok Chhaturvedi v. Shital H. Chanchani and another reported in A.I.R. 1998 2796; wherein paragraph 7 it has been held that " Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when
- 25 -
no offence is made out against them and still why must they undergo the agony of a criminal trial."
34. The other submission of the learned counsel for the opposite party is that the documents produced by the petitioners in their supplementary affidavit containing withdrawal of the notice filing of Sanha and the application form, PAN Card, Pass Book etc. shall not be considered at the stage or by the court below at the stage of cognizance on hearing on the point of charge. In this regard, reliance has been placed of the decision of the Apex Court in a case of State of Orissa v. Debendra Nath Padhi reported in 2005(1) SCC 568; wherein in paragraph 8 it has been held that " No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge that right is granted only at the stage of the trial". Further, elaborating in para 18 of the judgment, it has been held the expression "hearing the submission of accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled
- 26 -
law. At the stage of framing the charge hearing submission of the accused has to be confined to the materials produced by the police".
35. The Apex Court in the above case has not accepted its earlier view taken in a case of Satish Mehra v. Delhi Administration reported in 1996(9) SCC 766 = 1996 SCC Cr. 1104 = 1996 BBCJ 53 SC and further in para 23 it is held that "clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. In Satish Mehra case (Supra) holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.
36. The view taken by the Lordships in the Debendra Nath Padhi Case (Supra) shuts the door for the accused persons to produce any document before the Trial court at the time of taking cognizance or at the time of framing of the charge either at the stage of 239, 245 or 227 of the Code of Criminal procedure, but some questions emerged in my mind and I fail to restrain myself in stating that, prior to
- 27 -
amendment in the Code of Criminal Procedure in the year 1973, Section 202(1) of old act 1898 was as follows:
202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:
37. From the above, it appears that status of the person against whom any complaint was filed was not as of accused rather they were treated as persons complained of. But
- 28 -
after amendment taking place in the year 1973, some changes took place in the above section 202 (1) of the Criminal Procedure Code and here the word „accused‟ takes place of the word „persons complained of‟ which reads as such:
"202. Postponement f issue of process
- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding."
38. In the year 2006, the Code of Criminal Procedure has again been amended and specially in section 202(1) the words "and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" has also been
- 29 -
inserted and now present section 202(1) reads as such:
202.Postponment of issue of process -
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:"
39. It is settled principle/practice of law till now, that at the stage of inquiry after filing of the complaint the persons against whom inquiry is going on though has right to watch the proceeding but nothing more. And if such accused against whom complaint is
- 30 -
filed has to do nothing, but to watch the proceeding only what was intention of the legislature to arm such person with a right to be defended by pleader of his choice as provided under section 303 of the Criminal Procedure Code which reads as such:
"303. Right of person against whom proceedings are instituted to be defended - Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."
40. To my mind, intention of the legislature directly or indirectly behind providing such right of being defended to the accused and using the word „accused‟ in section 202(1) of the Criminal Procedure Code is that even at such stage the accused against whom complaint has been filed if can stand and successfully defend himself, may do so, and such act of defending himself may be done by engaging competent lawyer of his choice and by producing some documents of unimpeachable
- 31 -
character. If there is nothing left to be done except watching the proceeding what purpose would be served by deployment of any legal expert to defend.
41. No doubt, intention of the legislature may not be to provide status of inquiry for hearing on the point of charge, status of mini trial but at the same time if the criminal proceeding may be dropped on production of some documents of unimpeachable character cutting very root of prosecution on the point of law or jurisdiction of the court without depending upon or requiring any oral evidence or providing any room to cause delay, it may be done. Such situation may be compared with the provision as contemplated under Order XIV Rule 2 of the Civil Procedure Code which reads as such:
2. Court to pronounce judgment on all issues - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-
rule (2), pronounce judgment on all issues.
- 32 -
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
42. The above provision provides the civil courts to pronounce judgment on all the issues but at the same time sub-rule (2) arms the court with special jurisdiction to decide the case on preliminary issue if it involves issue of law only relating to jurisdiction of the court or a part of the suit created by any law for the time being in force.
- 33 -
43. If on consideration of the provisions referred to above, documents of unimpeachable character cutting very root of the prosecution case or jurisdiction of the court are produced by and considered at the instance of accused at the initial stage such as taking cognizance or hearing on the point of charge. The prolong trial may be avoided, momentum and pace to early and speedy disposal of the cases which has not become need and demand of the day, in order to protect the over burden judicial system may also be provided.
44. What is stated above in some of the forgoing paragraphs need consideration by legislature and other competent authority but unless any change in the law take place either by making any amendment or judicial pronouncement by competent courts. The law of the land on the point is as pronounced by their Lordships in Devendra Nath Padhi Case (Supra) that "at the time of framing charge or taking cognizance accuse has no right to produce any material."
45. So far as instant case is concerned, the above decision do not appear as
- 34 -
a bar to consider the documents produced by the petitioners by way of supplementary affidavit because as stated above the complainant opposite party by filing counter affidavit also annexed all such documents for the purpose of denying her signature on the application forms discrepancies in the PAN Card as regard to her father‟s name. Though, copy of pass book admitted with assertion that she has not furnished any documents for applying form in Mobile Connection.
46. Now such documents may be considered as the documents produced by the complainant/prosecution. In face of the above documents now the complainant opposite party no.2 is in a position to ascertain from where Mobile Connection in her name were issued and from the category of accused persons at serial no. 6 and 7. The word "not known" may also be omitted by substituting proper persons or authorities.
47. Under the facts and circumstances as stated above the impugned order is not sustainable, but, at the same time entire proceeding on the complaint petition if is
- 35 -
quashed, it may be contrary to law and interest of justice and in case simply the impugned order is set aside the court below shall go back at the stage of filing of the complaint and recording evidence of few witnesses during inquiry.
48. In such a situation also the court competent to take cognizance or on receipt of complaint is not helpless. Here comes the provisions as contemplated under Section 210 of the Cr.P.C. which reads as such:
210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (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
- 36 -
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 cognizance of any offence is taken by 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 on 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 cognizance 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."
And on receipt of report suitable order may be passed.
- 37 -
At the end, to sum up it seems essential to state relevant features and
material for consideration and to be acted upon such as:
(i) There were mobile connections standing in the name of the complainant opposite party no.2.
(ii) Such connections were issued on receipt of duly filled in and signed application forms, annexed with copies of PAN Card no. APMSN 7025J, Pass Book of saving bank Account No. 10082 etc. all containing name and address of the complainant.
(iii) The mobile phones remained in the extensive use accruing bill of more than Rs. 1 lakh. The user of phones, whenever he or she may be is/are liable to pay the due.
(iv) The complaint has been filed on receipt of legal notice seeking payment before initiation of any proceeding. Thus, the complainant is required to establish genuineness of her denial of ownership and use of
- 38 -
such mobile connection to avoid adverse inference and application of penal laws.
(v) The complainant opposite party no.2 may place and submit before the court below the information and documents produced here by counter affidavit filed on 27.04.2005.
(vi) If the connections were taken in name of the complainant using relevant documents issued in her name, without her knowledge, consent or signatures on the form and the document such as PAN Card in her name is not genuine, serious offence appears to have been committed.
(vii) All relevant documents throwing light to find out the wrong doers needs consideration.
(viii) Such type of controversy needs thorough investigation by competent authority may not be possible by examining a few witnesses during inquiry by court.
In the result, this application stands
- 39 -
allowed to the extent that the impugned order is quashed the matter is remitted to the court below for necessary orders in the light of observations made above and in accordance with law. The complainant opposite party no.2 is directed to appear before the court below or his successor in office on 21st August 2010 for needful. Meanwhile, let the order be communicated to the court concerned.
(Akhilesh Chandra, J.) Patna High Court Date : The 5th August 2010 Rajeev/