TMI Blog2008 (12) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Companies Act, 1956. It filed a complaint petition in the Court of Additional Chief Metropolitan Magistrate, New Delhi at Patiala House Courts under Section 200 of the Code in respect of an offence purported to have been committed and punishable under Sections 323, 382, 420, 465, 468, 471, 120-B, 506 and 34 of the Indian Penal Code accompanied by an application under Section 156(3) of the Code. 5. It is not necessary for us to deal with the allegations made in the said complaint petition in details. Suffice it to say that by reason of an order dated 7.02.2008, the Metropolitan Magistrate, New Delhi in whose court the aforementioned complaint petition was transferred, refused to direct investigation in the matter by the Station House Officer in terms of Section 156(3) of the Code, stating: In the present case all the facts and circumstances of the case are within the knowledge of the complainant. Both the complainant and the accused company have been dealing with one another by way of contractual agreement and a MOU dt. 05/08/05 was entered between them as alleged in the complaint. From the complaint and the documents placed on record, it appears that there is some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Prokash Chandra Bose alias Chabi Bose and another [AIR 1963 SC 1430] and Mohd. Yousuf v. Afaq Jahan (Smt) and Another [(2006) 1 SCC 627]. 9. A person intending to set the criminal law in motion inter alia may file an application under Section 156(3) of the Code. When a First Information Report is lodged, a police officer has the requisite jurisdiction to investigate into the cognizable offence in terms of Section 156(1) of the Code. Where, however, a Magistrate is entitled to take cognizance of the offence under Section 190 of the Code, he may also direct that such investigation be carried out in terms thereof. When a complaint petition is filed under Chapter XV of the Code, the Magistrate has a few options in regard to exercise of his jurisdiction. He may take cognizance of the offence and issue summons. He may also postpone the issue of process so as to satisfy himself that the allegations made in the complaint petition are prima facie correct 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 as to whether or not there is sufficient ground for proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yet again in P. Sundarrajan and Others v. R. Vidhya Sekar [(2004) 13 SCC 472], this Court held: 4. On the above basis, it proceeded to consider the material produced by the petitioner before it and without taking into consideration the defence that was available to the respondent proceeded to set aside the order of the Magistrate, and directed the said court to take the complaint on file and proceed with the same in accordance with law. 5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order. 14. We may also notice that this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another [AIR 1960 SC 1113], opined: 9. The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognisance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint but that is not the stage where defence of an accused can be gone into, stating: ...An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
