Tilaknagar Industries Ltd.& Ors vs State Of A.P. & Anr

dated 22.06.2010 registered at Chikkadpally Police Station,

Hyderabad.

The High Court, by a detailed order, dismissed the

appellants' case for quashing, inter alia, on the ground that

the complaint disclosed prima facie case. The said order of the

High Court has been impugned by the appellants before us on

various grounds.

When the matter was taken up at the previous stage and

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after we heard learned counsel for the parties and having

regard to the stand taken by the parties, we asked the learned

counsel for the appellant - Company to issue a publication in

respect of respondent no.2 - the complainant clarifying therein

that the expression "Judas" used against respondent no.2, was

wrongly published and the same is withdrawn by the appellant

Company.

Mr. Sidharth Luthra, learned senior counsel appearing for

the appellant - Company upon instruction, has stated before us

that his client is prepared to issue similar insertion in a

prominent newspaper along with photo of respondent no.2 stating

therein that expression "Judas" was used in connection with

respondent no.2 inadvertently.

However, Mr. Nagendra Rai, learned senior counsel for the

respondent no.2 did not accept the said proposal. We have

therefore heard the matter on merits.

On merits, Mr. Luthra further submitted that the complaint

has been filed by respondent no.2 by way of a counter blast

having regard to the material facts on record. Mr. Luthra

tried to take us to various other complaints filed against

respondent no.2 by the appellant company as also the civil suit

which was filed against him by the Company. While exercising

our jurisdiction in connection with quashing of a complaint, we

do not feel that we should directly go into all these factual

assertions and counter assertions between the parties. However,

while advancing the contention that this complaint has been

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filed by respondent no.2 so that the appellant may withdraw

cases against him, Mr. Luthra further submits to the effect

that the offences alleged against the appellant company by

respondent no.2 are relatable to Sections 504, 500, 503 and 34

IPC and submits that offence under Section 503 is punishable

under Section 506 IPC.

Mr. Luthra, the learned senior counsel for the appellants -

Company further submitted that accepting the allegations on

their face value, no cognizable case is made out against the

appellants. In support of his contention, Mr. Luthra referred

to the well known decision of this Court in the case of State of

Haryana & Ors. vs. Bhajan Lal & Ors. reported in 1992 Supp.(1)

SCC 335 and has drawn the attention of this Court to paragraph

102 and sub paras 2,4 and 7 thereof at page nos. 378 and 379 of

the report.

By referring to those paragraphs, Mr. Luthra submits where

the First Information Report and the accompanying materials do

not disclose the commission of any cognizable offence justifying

an investigation by police officer under Section 156(1) of the

Code, no investigation of the case can be carried on without the

order of the Magistrate in view of the mandate of Section 155

(2)of the Code.

We set out from Bhajan Lal those sub paragraphs herein

below:

102. xxx xxx xxx

(1) xxx xxx xxx

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) xxx xxx xxx

(4) Where, the allegations in the FIR

do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2)of the Code.

(5) xxx xxx xxx (6) xxx xxx xxx

(7) Where a criminal proceeding is

manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".

Learned counsel for the appellant relying on those

paragraphs submitted that the order passed by the Magistrate on

21.6.2010 on the complaint in this case which does not disclose

commission of a cognizable offence is not legally sustainable

order. The order reads thus:

"21.06.2010 This complaint is forwarded to Chikadpally Police Station for Investigation and report under Section 156(3) Cr.P.C.

Sd/-

Shri B. Rajashekar.

Ld. IXth ACMM"

5 Mr. Rai learned senior counsel appearing on behalf of

respondent no.2 submitted that in a case like this, this Court

is not called upon to go into all the factual allegations

levelled against his client by the appellant. Mr. Rai further

submitted labelling of the complaint or the FIR is not

decisive. As the respondent No.2 has made a complaint, it is

open to the Magistrate to take cognizance under Section 190 of

the Code and direct investigation.

After considering the rival submissions, we are of the view

that the contentions of Mr. Luthra are correct in view of

Section 155(2) of the Code as explained in Bhajan Lal. We are

of the opinion that the statutory safeguard which is given under

Section 155 (2) of the Code must be strictly followed, since

they are conceived in public interest and as a guarantee against

frivolous and vexatious investigation. The order of the

Magistrate dated 21.06.2010 does not disclose that he has taken

cognizance. However power under Section 156(3) can be exercised

by the Magistrate even before he takes cognizance provided the

complaint discloses the commission of cognizable offence. Since

in the instant case the complaint does not do so, the order of

Magistrate stated above cannot be sustained in law and is

accordingly quashed.

We do not make any observation on the merits of the

allegations made in the complaint. However, we make it clear

that the complaint which has been filed against respondent no.2

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may be treated in accordance with law.

With these directions, this appeal is disposed of.

.................J (ASOK KUMAR GANGULY)

...................J (GYAN SUDHA MISRA) New Delhi;

Dated: October 19, 2011