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IN THE HIGH COURT OF BOMBAY
`(D. G. Deshpande and V. K. Tahilramani, JJ.)
JITENDRA CHANDRAKANT MEHTA - Petitioner.
V.
M/s SHAMROCK IMPEX PVT. LTD. and others - Respondents.
Advocates Appeared
For petitioner: S. R. Chitnis, Senior Advocate with Smt. V. R. Raje
For respondent No.1: A. P. Mundargi, Senior Advocate with P. Badhekar and S. N. Raj
For State: D. S. Mhaispurkar, APP
Criminal Procedure Code, 1973 - Sections 2(d), 156(3) and 190 Indian Penal Code, 1860, Section 471 Contention False document relied on Order to investigate under Section 156(3), Cr PC challenged No prayer in complaint for punishing accused Such prayer does not affect legal process against accused person Prayer for investigation cannot be held to be illegal. Absence of any prayer of taking action against the accused according to law and/or to punish them according to law, does not affect the legality and validity of the complaint. Similarly, prayer of the complainant for directing investigation under Section 156(3) of the Criminal Procedure Code i.e. for an order under Section 156(3) cannot be said to be in any way illegal. Subsection (3) of Section 156 reads as under :
"Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."
Section 190 which is referred to, is, in Chapter XIV and the heading of the Chapter is "Conditions requisite for initiation of proceedings". Heading of Section 190 "is cognizance of offences by Magistrates". Sub-section (1)(a) of Section 190 empowers the "magistrate to take cognizance of such offence upon receiving a complaint of facts which constitute such offence." This will also clarify that the complaint as defined under Section 2(d) of the Criminal Procedure Code to be filed before the Magistrate contain the facts constituting the offence, and, therefore, when the complainant has given all the facts constituting the offence of forgery etc., as stated above, then it cannot be said that the complaint, is, in any manner defective. Therefore, the first contention and objection of Mr. Chitnis is required to be rejected in this regard.
Criminal Procedure Code, 1973 - Sections 2(d), 156(3) and 190 Indian Penal Code, 1860, Section 471 Cognizance under Letter relied in proceedings under Small Cause Court Act Pleaded as forge Challenged Mechanical order Complaint without approaching police not justified Held No validity in plea that before filing complaint before magistrate regarding cognizable offence approaching police was not proper is not correct and is rejected. The allegation against the Magistrate were that the attack was at his instigation. Police registered an offence and started investigation. Thereafter, he moved the magistrate having jurisdiction to take cognizance of the offence that the false report has been lodged against him and therefore by invoking the powers under Section 159 of the Code of Criminal Procedure that investigation may be stopped and the Magistrate may make further preliminary enquiry. The Magistrate allowed t hat prayer. The matter went to the High Court. The High Court quashed the order of the Magistrate and held that police were at liberty to conclude the investigation and submit their report to the Magistrate. Obviously, the issue before the Supreme Court was whether the Magistrate has powers under Section 159 of the Criminal Procedure Code to stop investigation, as prayed. In view of this background, the aforesaid observations of the Supreme Court heavily relied upon, are of no use to him. Court, does not agree with his submissions and his contention that before filing of the complaint before the Magistrate in respect of cognizable offence without approaching the police, is required to be rejected, and is hereby rejected.
Criminal Procedure Code, 1973 - Section 156(3) Complaint alleging offence of forgery Plea that it is not permissible to file the complaint before the Magistrate in respect of cognizable offence without approaching the police, is liable to be rejected. AIR 1970 SC 786, Ref.
Criminal Procedure Code, 1973 - Section 195 Complaint alleging forgery Cognizance by Magistrate Plea taken that if at all any document before the Small Causes Court was forged one, or forgery was committed in respect of any document before the Small Causes Court, then no complaint could be filed excepting upon the complaint in writing by that Court It was not case of the complainant that forgery in respect of the said letter was committed after the document was produced before the Small Causes Court and therefore the bar under Section 195 would not apply. 1998 (2) SCC 493, 2005 (3) Scale 93, Ref.
Criminal Procedure Code, 1973 - Sections 200 and 156 Complaint alleging forgery Complainant had given all the facts constituting the offence of forgery Complaint cannot be said to be defective.
D. G. DESHPANDE, J.: - Heard learned counsel for the petitioner and the respondents, and the learned APP.
2. Criminal Writ Petition No. 2198 of 2005 had come before the Division Bench on 13 - 1 - 2006, at that time Mr. Chitnis, counsel for the petitioner informed that some more petitions on the same issues are pending, and he undertook to furnish number of those petitions and accordingly other petitions, i.e. Writ Petition No. 2901 of 2005 and Writ Petition No. 781 of 2006 were kept along with Writ Petition No. 2198 of 2005.
Thereafter, at the time of arguments, Mr. Chitnis stated that though issues involved are same, but facts may be different, and therefore the Writ Petitions i.e. Writ Petition No. 2901 of 2005 and Writ Petition No. 781 of 2006 should be heard separately.
3. The prayer in Writ Petition No. 2198 of 2005 is that proceedings arising out of C.C. No. 466/MJ of 2004 and the order recorded under section 156(3) of the Code of Criminal Procedure by the Additional Chief Metropolitan Magistrate, 23rd Court Esplanade, Mumbai, and consequent FIR and investigation under MECR No. 14 of 2004 be quashed and set aside.
4. Respondent No. 1 had filed the complaint before the Additional Chief Metropolitan Magistrate, 23rd Court, at Esplanade, Mumbai, against the petitioner. Prayer in the complaint was that the Court be pleased to direct the Senior Inspector of L. T. Marg Police Station or the Crime Branch to conduct. enquiry under section 156(3) of the Criminal Procedure Code and investigate the matter and submit report to the Court.
5. The Magistrate on 30 - 8 - 2004 passed an order to the following effect:
"Read complaint. Heard complainant and his Advocate. Perused documents. In view of the allegations made, it requires proper investigation as allegations of forgery etc. are made. Hence, the complaint is referred under section 156(3) of the Criminal Procedure Code to Senior Police Inspector, L.T. Marg Police Station for investigation and report r/o 20 - 11 - 2004 at 11.00 a.m."
6. The allegations of the complainant in the said complaint were that in R.A.E. Suit (Stamp) No. 2164 of 2004 pending before the Small Causes Court at Mumbai, the accused i.e. petitioner preferred an application for injunction being LA. No. 3100 of 2004 and relied upon certain documents. The document which was a letter dated 26 - 3 - 1988 addressed by Dr. Rustom P. Patel to the Central Bank and Executor and Trustees Ltd. the then landlord of the premises, and, that this letter is forged according to the complainant, and, therefore, it was this forgery for which the complaint came to be filed and the Magistrate passed the aforesaid order.
7. It is the case of the petitioner that pursuant to the said order, the offence of forgery was registered against them. The petitioner was arrested and later on granted bail, his wife was also granted bail but the petition is filed to quash the said complaint and the order of the Magistrate, referred to above, under section 156 (3) of the Criminal Procedure Code.
8. Mr. Chitnis, firstly, contended that there is no prayer in the complaint for punishing the accused according to law and the only prayer is action und section 156(3) of the Criminal Procedure Code and therefore the complaint d not satisfy the requirements of the Criminal Procedure Code. Secondly, it was contended by him that order under section 156(3), is, of far reaching consequences, and, therefore the Magistrate cannot pass the said order mechanically. Accordingly, the impugned order is mechanically passed by the Magistrate without requiring the complainant to prove prima facie his case. Thirdly, if the so - called forged letter was in the custody of the Small Causes Court then the Magistrate could not have taken cognizance of the matter unless the complaint in that regard was filed by the Court or by some other officer of the Court as per the directions of the Court. In other words, according to him, if any offence of
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