K. S. SIDHU, J. - (1.) THIS order will deal with an application under section 482 of the Code of Criminal Procedure, 1973, (for short, the Code), which was filed in the following circumstances.
(2.) KRISHAN Kumar Sharma and Basant Kumar Sharma, petitioners herein, are Managing Director and Executive Director, respectively, of M/s Starit Water Treatment Company Limited, Bombay. P. N. Bijai, respondent 2 herein, is Administrative Officer of General Engineering Works, Bharatpur, Rajasthan. On April 8, 1977, P. N. Bijai made a complaint in writing to the Judicial Magistrate, First Class, Bharatpur, alleging that the petitioners had committed offences against section 120-B and 420 of the Indian Penal Code, and praying they be punished accordingly. The learned Magistrate forwarded this complaint to the Officer-in-Charge, Kotwali Police State, Bharatpur, with an order directing the said officer to register the case as, in the opinion of the learned Magistrate, it disclosed a cognizable offence. The learned Magistrate further directed the said Officer-in-charge to make investigation according to law. He made it clear in his order that he himself did not take cognizance because the offence being cognizable, he was directing investigation into it in accordance with the provisions of section 156 (3) of the Code. The Kotwali Police, Bharatpur, registered a formal first information report (F. I. R. No. 120 of 1977) on the basis of the said complaint making an endorsement thereon by way of "karwahi Police" that the complaint disclosed an offence only against section 420 Indian Penal Code. The Police were apparently not satisfied from the complaint that an accusation of an offence against section 120-B of the Indian Penal Code was disclosed therein. They did not, therefore, find it fit to register any case under section 120 B. I. P. C. The police forwarded a copy of this F. I. R. to the Magistrate concerned. The learned Magistrate received the copy on April 13, 1977. He filed the same with an endorsement of even date directing that the same would be put up before him along with the police report under section 173 of the Code. The case remained under investigation of the Bharatpur Police from April, 1977 to January, 1978 It still remains at the stage of the investigation, on January 6, 1978, the Investigating Officer, applied to the learned Magistrate, Bharatpur, for issue of warrants of arrest of the petitioners, stating that an offence against section 420 I. P. C. was made out and that since the petitioners were residing in Bombay, warrants were needed so that they could be arrested and thereafter police report under section 173 of the Code could be forwarded to the court according to law. The learned Magistrate issued the warrants as prayed. The Bharatpur police went to Bombay for the execution of the warrants. Meanwhile, the petitioners had already obtained orders of anticipatory bail from the High Court of Judicature at Bombay on March 13, 1978. The High Court directed the petitioners to appear before the Judicial Magistrate, first class Bharatpur on April 13, 1978. On March 30, 1978, the petitioners made the present application to this court, purporting to do so under sec 482 of the Code, praying that, as they put it, "the proceedings before the Judicial Magistrate, First Class Bharatpur in criminal case No. 120/77 against the petitioners be quashed and set aside". This court passed an order, dated, March 31, 1978, directing issue of notice to the respondents and summoning the record. A perusal of the record received from the Magistrate shows that on April 3, 1978, the petitioners did not appear before the learned Magistrate First Class, Bharatpur. They thus committed a breach of the conditions on which the Bombay High Court had granted them bail. Another fact which has come to light from the record during the course of arguments is that in their application under section 482 of the Code, which is a fairly lengthy document, the petitioners made a total suppression of the fact that they had been directed by the Bombay High Court to appear before the Magistrate at Bharatpur on April 3, 1973. They also made an incorrect averment suggesting as if a criminal case being No 120/77 was pending before the learned Magistrate at Bharatpur. Having made that averment, they asked from the court the relief that, the proceedings before the Judicial Magistrate First Class, Bharatpur, in criminal case No, 120/77 against the petitioners be quashed and set aside. " As already indicated, the correct position is that No. 120/77 represents the number of the the FIR as recorded by the officer-in-charge of the Kotwali Police Station, Bharatpur, in the register prescribed for the purpose. There is no such case as No. 120/77 pending before the learned Magistrate.
(3.) THESE facts, as gathered from the record, reveal that the petitioners cannot possibly have any legitimate grievance either against the conduct of the investigation conducted by the police or issue of the warrants of arrest by the Magistrate during the said investigation. As regards the petitioner's complaint that the investigation undertaken by the police and the warrants issued by the Magistrate amount to an abuse of the process of the Court, the said allegation has only to be stated for its rejection. Let alone the petitioners being victims of the so-called abuse of the process of the Court, they have themselves, on the other hand, abused the process of this Court by resorting to suppressio veri and suggestio falsi. They had concealed from the Court, the fact that they were required by the Bombay High Court to appear before the learned Magistrate at Bharatpur on April 3, 1978. They made a false allegation that criminal case No. 120/77 before the learned Magistrate, Bharatpur. Their application under Section 482 of the Code deserves dismissal on these grounds alone, but, having regard to the vehement and lengthy arguments addressed on their behalf by Mr. Tiwari, I am inclined to examine the arguments, albeit briefly. Mr. Dave, learned counsel for respondent No. 2, raised a preliminary objection that since the matter is still at the investigation stage and there is no judicial proceeding pending in the Court of the learned Magistrate, the application under Section 482 of the Code is not maintainable. Mr. Tiwari, how ever, maintained that on April 8, 1977, when respondent No. 2 made his complaint in writing to the Magistrate and the latter passed an order thereon, he shall be deemed to have taken cognizance thereof and, in that sense, the judi-cial proceedings in the said complaint are pending in his court. Counsel referred in this connection to the endorsement made on the complaint by the learned Magistrate to the effect that since it disclosed a cognizable offence, he was forwarding it to the officer-in-charge of the Kotwali Police Station for investigation. The learned Magistrate must be deemed, so runs the argument, to have applied his mind to the complaint to determine, whether it disclosed a cognizable offence or not, and since he had applied his mind he had taken cognizance of the offence as contemplated by the provisions of Sec. 190 (i) (a) of the Code. This, argument is wholly untenable. The learned Magistrate himself made it clear in the said endorsement that he was not taking cognizance of the offence, since the same, being cognizable, should be investigated by the police. He further directed the police under Sec. 156 (3) of the Code to investigate. The police recorded the FIR in accordance with the complaint, and commenced investigation into it in exercise of its statutory powers. In the facts and circumstances, the Supreme Court authority reported in Gopal Das vs. State of Assam (1) applies on all fours to this case. The relevant holding of the Supreme Court may be reproduced here: - "we cannot read the provisions of sec. 190 to mean that, once a complaint is filed, a Magistrate is bound to take cognizance, if the facts stated in the complaint disclosed the commission of any offence. We are unable to construe the word 'may' in sec. 190 to mean 'must'. The reason is obvious. A complaint disclosing a cognizable offence may well justify a Magistrate in sending the complaint under Sec. 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code. " Explaining the expression "take cognizance" as it occurs in Sec. 190, the Supreme Court quoted with approval the observations of Mr. Justice Dass Gupta in the case of Superintendent and Remembrancer of Legal Affairs of West Bengal vs. Abani Kumar Banerjee, (2) to the effect that before a Magistrate can be said to have taken cognizance of an offence under Sec. 190 (i) (a) of the Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XV dealing with complaints of which a Magistrate takes cognizance. In the instant case, the learned Magistrate applied his mind not for the purpose of proceeding under Chapter XV of the Code, but for ordering investigation under Sec. 156 (3) of the Code. He made it expressly clear that he was not taking cognizance of the offence himself. The warrants of arrest were issued by the learned Magistrate for the purpose of investigation at the instance of the Investigating Officer. It was made clear by the Supreme Court in the cited case that by issuing such warrants for the purpose of investigation, the Magistrate cannot be said to have taken cognizance of the offence. It can, therefore, be safely concluded that there is no judicial proceeding of any kind pending in the Court of the Judicial Magistrate, First Class, Bharatpur in respect of which this Court could possibly exercise its inherent jurisdiction under Sec. 482 of the Code. The matter is still pending at the stage of investigation. ;