2022 (1) TMI 1439 - HC - Indian Laws

Gross abuse of the process of law - disclosure of ingredients of the offence attributed against the accused/petitioner - compliance with mandatory provisions of law under section 202 of Cr.P.C. either by inquiring into the case himself or by directing an investigation to be made by a Police Officer or by such other person as he thinks fit before issuing summons under section 204 of the Cr.P.C. HELD THAT - The petitioner is admittedly residing outside the jurisdiction of the learned Magistrate 6th Court, Alipore who issued summons in this case without fulfilling the mandatory provision of section 202(1) of the Code of Cr.P.C. On a clear reading of the petition of complaint it is gathered that the petitioner was appointed by the company on 07.04.2014 and he worked till 26.09.2015, which is one year and five months. Annexure-I of the Offer letter for appointment dated 04.03.2014 discloses that the minimum tenure of service will be for one year. Therefore, discontinuation of service by the petitioner does not result in violation of his terms of service which is however inconsequential to the offence of cheating and breach of trust alleged - From the documents filed it is revealed that the resignation of the petitioner was accepted and Relieving letter dated 19.10.2015 and Experience Certificate dated 19.10.2015 have been issued by the Head, H.R. ADMIN of the company at Kolkata. Considering the allegations in the complaint as they were, to continue the criminal proceeding against the accused even for the offence under section 323 would be an abuse of the process of court and the law and that it was a fit case to exercise the powers under section 482 of the Cr.P.C., and to quash the impugned criminal proceeding. The facts and circumstances of the present case can be distinguished from the facts of the case cited by learned Advocate for the petitioner. In the referred case the complainant and one witness were examined as part of the inquiry under section 202 of the Cr.P.C. It is only after cognizance was taken and summons were issued that the question was raised about absence of a prima facie case, that ingredients of offence taken cognizance of were not satisfied and the impugned proceeding was an abuse of the process of court. In the instant case the provision under section 202 of Cr.P.C. have not been complied at all. In the case under considering the learned Magistrate did not hold any inquiry under section 202 of Cr.P.C. though it is apparent from the complaint that the accused resided outside the jurisdiction of the court where the complaint has been lodged. Learned Magistrate on the other hand held an inquiry under section 200 of Cr.P.C. simpliciter and only examined the complainant and no other witness or document. In the case of National Bank of Oman V. Barakara Abdul Aziz 2012 (12) TMI 965 - SUPREME COURT , Hon'ble Supreme Court while considering the amended provisions of sub-section (1) of section 202 Cr.P.C. observed that, The duty of a Magistrate receiving a complaint is set out in Section 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under section 202 Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint. The complaint is not quashed as the proceedings has remained inchoate without compliance of section 202 of Cr.P.C. laid down as a mandatory provision - the learned Magistrate has a committed an error of law by issuing summons against the accused petitioner under section 204 of Cr.P.C. without holding inquiry under section 202 of Cr.P.C. which is proscribed. Accordingly order dated 15.03.2016 issuing summons upon the petitioner/accused is found improper and is set aside. The revisional application is allowed on its merit.

Summary

Issues Involved:
1. Abuse of Process of Law
2. Disclosure of Offense Ingredients
3. Compliance with Section 202 of Cr.P.C.

Summary:

1. Abuse of Process of Law:
The petitioner, an ex-employee, filed a revisional application u/s 482 of the Cr.P.C. to quash proceedings in Complaint Case No. A.C. 711 of 2016 u/s 420 and 406 of the IPC, pending before the Judicial Magistrate, 6th Court at Alipore. The petitioner argued that the criminal proceedings were initiated spitefully to harass him post-employment, constituting an abuse of the process of law and court.

2. Disclosure of Offense Ingredients:
The petitioner contended that the complaint did not disclose the ingredients of the offenses attributed to him. He was employed as a 'Wind Resource Analyst' and resigned after fulfilling his contractual obligations. The company issued an Experience Certificate and Relieving Letter, and credited his final salary. The complaint alleged that the petitioner did not return a laptop and valuable documents, causing a loss of Rs. 1.5 lakhs, later stated as Rs. 5 lakhs in the initial deposition. The petitioner argued there was no entrustment of such items, and the complaint was frivolous.

3. Compliance with Section 202 of Cr.P.C.:
The petitioner, residing outside the jurisdiction of the Magistrate, argued that the mandatory provision u/s 202(1) of Cr.P.C. was not complied with before issuing process u/s 204 of Cr.P.C. The court noted that the Magistrate issued summons without conducting the mandatory inquiry u/s 202 of Cr.P.C., which requires examining the complainant and witnesses to ascertain the truth of the allegations.

Judgment:
The court found that the Magistrate committed an error of law by issuing summons without complying with the mandatory provisions of section 202 of Cr.P.C. The order dated 15.03.2016 issuing summons was set aside. The matter was remitted to the Judicial Magistrate, 6th Court, Alipore, to pass a fresh order after complying with section 202 of Cr.P.C., preferably within two months. The revisional application was allowed on its merit.