2017 (8) TMI 1636 - HC - Indian Laws

Principles of natural justice - non-compliance with the procedure under Section 340 Cr.P.C as well the mandatory provisions of Section 195 Cr.P.C. - whether the impugned order is vitiated in the eyes of law as the learned Chief Judicial Magistrate has not followed the procedure under Section 340 Cr.P.C as well the mandatory provisions of Section 195 Cr.P.C.? - HELD THAT - In the instant case, the records reveal that offences under Sections 193, 196, 205 and 120B read with 149 of IPC are alleged to have been committed in a proceedings in a Court of law affecting the administration of justice. Section 340 of the Code provides the procedure for offences enumerated in Section 195(1)(b)(i) of the Code. According to the learned counsel for the petitioner, a complaint which is filed under Section 340 alleging commission of offences under Section 193, 196, 205 of the IPC can be proceeded only as per the procedure laid down in Section 340 of the Code and non-compliance would vitiate the prosecution. Of-course the provisions under Section 195 and Section 340 of the Code are to protect persons from needlessly harassed by vexatious prosecution due to personal vendetta or retaliation against any person. It is discernible from the records that the learned Sessions Judge keeping the settled principle of law in mind instructed the Chief Judicial Magistrate in the Revision Petition, to direct the investigating officer to have a full-fledged investigation by the police as persons who are not parties to the proceedings are also suspected to be involved in the alleged impersonation and fraud practiced upon the Court and that the report of the police can be made use of, as a material for considering whether a complaint has to be filed and what all are the offences committed - It is well settled that the inherent jurisdiction under Section 482 Cr.P.C has to be exercised sparingly and carefully with caution to avoid abuse of the process of the Court and prevent miscarriage of justice and to secure the ends of justice. Here, the alleged offences are of exceptional nature and gravity. Who all are the culprits involved in the alleged crime and their participation in committing the alleged offences have to be unearthed and booked for the same. The learned Chief Judicial Magistrate has to deal with the matter in accordance with the established proposition of law and record a finding on the basis of the report that will be submitted by the Investigating Officer after a full fledged investigation and the investigation is permitted to proceed with - It is well settled that the inherent jurisdiction under Section 482 Cr.P.C has to be exercised sparingly and carefully with caution to avoid abuse of the process of the Court and prevent miscarriage of justice and to secure the ends of justice. Here, the alleged offences are of exceptional nature and gravity. Who all are the culprits involved in the alleged crime and their participation in committing the alleged offences have to be unearthed and booked for the same. The argument advanced by the learned counsel for the petitioner that the order is vitiated in the eyes of law inasmuch as the mandatory provisions as envisaged under Section 340 of the Code have not complied with and the procedure adopted for registration of Annexure A1 FIR, suffers from grave error and calls for rectification, is devoid of merits. Application dismissed.

Summary

Issues Involved:
1. Quashing of the First Information Report (FIR) under Section 482 Cr.P.C.
2. Compliance with the procedure under Section 340 Cr.P.C.
3. Legality of the police investigation into non-cognizable offences under Sections 193, 196, 205 IPC.
4. Validity of the Sessions Judge's order directing a de novo trial and investigation.

Detailed Analysis:

1. Quashing of the First Information Report (FIR) under Section 482 Cr.P.C.
The petitioner, the first accused, sought to quash the FIR registered as Crime No. 1065/2004 of Kasaragod Police Station. The FIR was filed for offences under Sections 193, 196, 205, 120B read with Section 149 of IPC. The petitioner argued that the FIR was illegally registered as the Chief Judicial Magistrate did not follow the procedure under Section 340 Cr.P.C. and Section 195 Cr.P.C. The Court, however, found no merit in the petitioner's argument, emphasizing that the inherent jurisdiction under Section 482 Cr.P.C. must be exercised sparingly and only to prevent abuse of process or miscarriage of justice. The Court concluded that the case did not warrant the exercise of its jurisdiction under Section 482 Cr.P.C. and dismissed the petition.

2. Compliance with the procedure under Section 340 Cr.P.C.
The petitioner contended that the Chief Judicial Magistrate deviated from the procedure under Section 340 Cr.P.C., which mandates a preliminary inquiry before making a complaint. The Court examined the relevant provisions of Section 340 Cr.P.C. and Section 195 Cr.P.C., which govern the procedure for offences affecting the administration of justice. The Court noted that the learned Sessions Judge had directed a full-fledged investigation by the police and that the Magistrate's role was to use the police report as material for considering whether to file its own complaint. The Court found that the Chief Judicial Magistrate had complied with the established legal procedure and that no illegality was committed.

3. Legality of the police investigation into non-cognizable offences under Sections 193, 196, 205 IPC.
The petitioner argued that the offences under Sections 193, 196, 205 IPC are non-cognizable, and therefore, the police could not investigate them without a court order. The Court referred to the Supreme Court's judgments in State of Punjab v. Raj Singh and Anr. and Narayanadas v. State of Karnataka, which clarified that Section 195 Cr.P.C. does not control the police's statutory power to investigate cognizable offences. The Court held that the police investigation was legal and that the police report could be used by the Magistrate to decide on filing a complaint after following the procedure under Section 340 Cr.P.C.

4. Validity of the Sessions Judge's order directing a de novo trial and investigation.
The Sessions Judge had set aside the order of acquittal and directed a de novo trial, along with an investigation into the alleged impersonation of accused and witnesses. The Court noted that the Sessions Judge's order was not challenged by any party and that the Chief Judicial Magistrate had complied with this order. The Court found that the Sessions Judge's directions were in line with legal principles and aimed at uncovering the truth about the alleged fraud and impersonation. The Court upheld the validity of the Sessions Judge's order and the subsequent actions taken by the Chief Judicial Magistrate.

Conclusion:
The Court dismissed the petition to quash the FIR, finding that the Chief Judicial Magistrate had followed the correct legal procedure under Section 340 Cr.P.C. and Section 195 Cr.P.C. The Court affirmed the legality of the police investigation and the validity of the Sessions Judge's order for a de novo trial and investigation. The inherent jurisdiction under Section 482 Cr.P.C. was not exercised, as the case did not present an instance of abuse of process or miscarriage of justice.