TMI Blog2020 (2) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 - - - Dated:- 6-1-2020 - Mr. Justice Rajeev Ranjan Prasad For the Petitioner/s : Mr.Ashhar Mustafa, Advocate For the Opposite Party/s : Mr.Ramchandra Singh, APP C.A.V. JUDGMENT This application under Section 482 of the Code of Criminal Procedure (in short Cr.P.C. ) has been preferred seeking quashing of the First Information Report giving rising to Saharsa Sadar P.S. Case No. 51 of 2008 dated 08.02.2008 registered under Sections 406, 420, 409, 120B, 504 of the Indian Penal Code. The FIR has been lodged after a written complaint filed before the learned Chief Judicial Magistrate being Complaint Case No. 584C of 2007 was referred to the jurisdictional Police Station under Section 156(3) of the Cr.P.C. 2. In the written complaint, the complainant/informant alleged that he being a businessman had opened a saving account in Central Bank Employees Savings and Credit Self Supported Cooperative Society Limited having its principal office at Supaul and a branch office at Saharsa. The informant was depositing a sum of ₹ 200/-per day through an agent and the amount was being entered in this pass-book which ultimately matured for payment at the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused prima facie committed the offence, take cognizance of the offence and would issue process or warrant to the accused, if on bail, to appear on a date fixed for trial or to commit him for trial to the court of session. It is not incumbent upon the Magistrate to accept the report of the investigating officer that there is no sufficient evidence or reasonable ground to connect the accused with the commission of the crime; he may direct further investigation or suo moto the investigator may himself submit supplemental chargesheet under S. 173(8) if he subsequently becomes aware of certain facts or itself or through a subordinate Magistrate to make further enquiry or to take cognizance of the offence upon consideration of the material so placed before him and take further steps as aforesaid. Then only proceedings in a criminal case stands commenced. Taking cognizance of the offence is conterminous to the power of the police to investigate in the crime. Until then there is no power to the Magistrate except on a private complaint in a cognizable/non-cognizable offence to direct the police to investigate into the offence. The Magistrate is not empowered to interfere with the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material placed before him. The High Court committed grave error by making observations on seriously disputed questions of facts taking its clue from affidavit, which in such a situation hardly provides any reliable material. This Court also noted that the interference or direction, virtually amount to a mandamus to close the case before the investigation is complete. In State of West Bengal v. Sampat Lal (1985) 1 SCC 317 at p. 336 para 26, this Court held that the court has residuary power to give appropriate directions to the police when the requirements of law are not being complied with and investigation is not being done properly or with due haste and promptitude. 6. Learned APP submits that in a catena of decisions the Hon ble Supreme Court has held that the High Court need not interfere with the investigation in exercise of its inherent power under Section 482 Cr.P.C. and that in an appropriate case where the FIR does not disclose commission of an offence, the High Court can quash the investigation and interfere with the same under Article 226 of the Constitution of India but it cannot exercise its inherent power for quashing the investigation under Section 482 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. This court in the said judgment made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised. According to this judgment, the High Court would be justified in exercising its power in cases of following categories: (SCC pp.378-79) para 102) 102. ( 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 cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under Section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. 10. In the case of Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors. reported in (2005) 1 SCC 122 the Hon ble Supreme Court observed thus:- 8 .. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 11. In the case of Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and Anr. r eported in (2006) 7 SCC 188 the Hon ble Supreme Court has reiterated the legal position. It has been h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 (The Central Bank Employees Savings and Credit Self Supported Co-operative Society Ltd. Ors. Vs. The State of Bihar Ors.) and its analogous case being Cr. Misc. No. 6586 of 2017 (Md. Ehsanul Haque Vs. The State of Bihar Ors.) It is submitted that in the said case learned coordinate Bench has taken note of Section 50(2) of the Act of 1996, noticed the judgment of the Hon ble Delhi High Court in the case of D. K. Kapur Vs. Reserve Bank of India Ors. reported in (2001) ILR 1 Delhi 35 and came to the conclusion as under:- From the aforesaid, it is clear that the terms other legal proceedings referred in Section 50(2) of the Act shall cover criminal proceeding also. Further while defining the power of liquidator in Section 47, sub sections (2) and (3) of the same give him the power to proceed against any person for concealing, withholding or misappropriating any property of the Society. Moreover, Section 47 (1)(b) also confers on the liquidator the power to bring, defend or take part in civil or criminal or administrative action or proceeding in the name and on behalf of the co-operative society. This clearly provides that if any criminal conduct is found attribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo years of the date of its registration; or (f) has not carried on business for the past two consecutive years, the Tribunal shall pass an order for dissolution. 17. The order passed by the Tribunal for dissolution of the society when received by the Registrar he shall act as per order of the Tribunal and where the order is to liquidate and dissolve the Cooperative society under the supervision of the Registrar then a notice will be published in the newspaper and the same will be distributed in the district in which the registered office of the Cooperative society is situated. Section 45 under the said Chapter provides for appointment of Liquidator and to wind up the affairs of the co-operative society. Section 46 provides for duties of the Liquidator and one of his duties is to take into custody and control the property of the Cooperative Society, keep accounts of the money of the Cooperative Society received and paid out by him. Certain powers have been conferred upon the Liquidator under Section 47 of the Act of 1996 and then by following those procedures the Liquidator shall submit final account for approval and promotion to distribute the money. Where the Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chits (I) Ltd. Vs. G. Sukumaran Pillai reported in (1985) 1 SCR 511 and the law summarised on the subject in the case of Central Bank of India Vs. M/s Elmot Engineering Company reported in (1994) 3 SCR 766, the court then noticed various other provisions of the Companies Act, 1956 and observed in paragraph 12 of the judgment as under:- 12. Mere look at the aforesaid provisions would show that on the one hand, in Section 457 of the Act, the legislature has empowered the liquidator to institute or defend any suit or prosecution or other legal proceedings civil or criminal in the name and on the behalf of the company after permission from the court; and by Section 454 (5A) of the Act the legislature has empowered the Company Court itself to take cognizance of the offence under sub-section (5) of Section 454 of the Act and to try such offenders as per the procedures provided for trial of summons cases under the Code of Criminal Procedure, 1974; but on the other hand in Sections 442 and 446 of the Act the legislature has used only the expression suit or other legal proceedings . The words prosecution or criminal case are conspicuously missing in these sections. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings to itself and assessed the company to Income Tax. 15. The reasoning adopted by the Supreme Court in the above case would be fully applicable to the facts at hand. Complaints under the panel provisions of other statutes against the company or its directors, (except those provided under the Companies Act) cannot be appropriately dealt with by the company court. Orders passed by the criminal court are subject to the appeal and revision etc. under the Code of Criminal Procedure. If the (sic) court is held to be empowered to transfer these criminal proceedings to itself it would to anomalous consequences. 23. On the strength of aforesaid submissions it is contended that the view taken by the learned co-ordinate Bench of this Court as regards the true scope and ambit of sub-section (2) of Section 50 of the Act of 1996 is required to be considered. CONSIDERATION 24. Having heard learned counsel for the petitioners and learned APP for the State as also on a careful perusal of the provisions of the Act of 1996 which have been referred here and the judicial pronouncements on the subject, this Court regrets its inability to agree wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
