Palshikar, J.
1. By all these petitions the petitioners, who are accused persons in the original complaint filed in the Court of Metropolitan Magistrate, Bombay have challenged the order passed by that learned Magistrate directing the investigating under Section 156(3) of the Criminal Procedure Code.
2. All these petitions arise out of one criminal complaint filed in the Court of Metropolitan Magistrate as Esplanade in Bombay, which is registered as Case No. 12/I & R/2003. It is filed by one Stany Saldanha, authorised representative of M/s. Smay Investments limited, Bombay. All these petitioners in thee petitions are the accused named in this complaint. All of them seek quashing of the complaint as also quashing of the order passed by the learned Magistrate directing investigation under Section 156(3) of the Cr.P.C. Since all these facts giving rise to these petitions, flow from one complaint and the parties to these complaints are common, all these petitions are being so disposed of by this common judgment. It will cover and dispose of all these petitions filed in this regard.
3. The original complaint as filed before the learned Metropolitan Magistrate, complains of offences under Sections 120-B, 420, 464, 465, 467 and 471 of the Indian Penal Code, being committed by the accused persons named in the complaint. Perusing the complaint, the learned Magistrate passed an order directing investigation under Section 156(3) of Cr.P.C. by the economic offences wing. Crime Branch CID, Bombay. Issuance of this order as also the original complaint are sought to be quashed by these writ petitions filed under Article 226 of the Constitution of India.
4. Rule was issued in W.P.No. 661 of 2003 along with W.P.No. 900/03 and they were to be listed for final hearing on 16th July 2003. Ultimately the arguments accordingly were heard on that day and the matter was closed for judgment.
5. After the Rule was issued in this case and before the Rule was taken up for final disposal, three more petitions have been filed by three other petitioners, which are also kept along with these petitions for final disposal. We have heard all the counsel and we are disposing of all these petitions by this order. We would first notice the submissions made on behalf of the petitioners and the replies of the respondents and then will proceed to consider the same thereafter. The argument on behalf of the petitioners, seeking quashing of the complaint as also the order under Section 156(3) of Cr.P.C., stated in nutshell are as under:
1) That the perusal of the entire complaint makes out no offence and therefore it is liable to be quashed.
2) The complaint may disclose certain offences, defined in Section 191, 192, 193, 467 and 471 of IPC, as the tile of the complaint shows. But the provisions of Section 195 of Cr.P.C. specifically bars taking of cognizance in such cases. Therefore the complaint is liable to be quashed.
3) From the entire recitals of the complaint it is obvious that the whole dispute is purely of civil nature and filing of the complaint is motivated to harass the petitioners and therefore it is liable to be quashed.
4) The complaint itself discloses that the purpose of filing the complaint is to take immediate action against the petitioners as the civil proceeding may drag for years. According to the learned counsel therefore it is obvious that the complaint is motivated by malafides and does not disclose any evidence and on this ground also the complaint is liable to be quashed.
6. The learned counsel appearing for various petitioners have relied on several decisions of the Supreme Court of India for each of the propositions that they have made.
7. These submissions are opposed by the learned counsel appearing on behalf of the respondents-the original complainant.
1) The petition is not maintainable at all as the petitioners have alternate remedy of challenging the order under Section 156(3) of Cr.P.C.
2) The petition is very premature. There is no need to interfere at this stage as all that has been done by the learned Magistrate is an order under Section 156(3) of the Code. The report that the police may file as a consequence of that order may disclose no offence therefore the Magistrate may drop the complaint. To require its quashing at this stage therefore unwarranted and premature.
3. If the report discloses possible commission of any offence the Magistrate may decide to take cognizance of the matter and issue process, the issuance of which also can be challenged.
4. If at all the process is so issued, even after issue of process and framing of the charges, the petitioners can avail the remedy of claiming discharge in the Court of learned Magistrate himself and all the orders that the learned Magistrate may make at each point of time are open to the challenged remedies for which are available under Cr.P.C. and in such situation adequate alternate remedy of equal force being available to the petitioner, extra ordinary jurisdiction under Article 226 of the Constitution need not be exercised. The submissions are also made on behalf of the respondents to point out that prima facie case is made out by the complainant that the complaint does need investigation and therefore there is no need to quash the complaint at this stage. This submission obviously is on the merits of the case.
We have to consider this rival submissions in the light of the provisions of Cr.P.C. and the various authorities of the Supreme court of India cited at the bar.
8. We will first consider the scheme of the Cr.P.C. in regard to taking of cognizance on complaints. Chapter XIV of the Cr.P.C. 1973 (hereinafter referred to as the Code) provide for conditions requisite for initiation proceedings under it. Section 192 provides that any Magistrate of the First Class may take cognizance of any offence, upon receiving the complaints on facts, which constitutes such offence or upon a police report. This provision therefore spells out the general power of taking cognizance by the Judicial Magistrate, First Class. The provisions that follow thereafter are ancillary or spell out exceptions of the general power of the Magistrate to take cognizance under Section 190.
9. Section 191 deals with transfer of the case from one Magistrate to another. Section 192 deals with power of Chief Judicial Magistrate to take over the case for enquiry or trial to any other competent Magistrate. Section 193 provides in the case which are expressly provide by the Code as triable by the Court of Sessions and further provides that the Court of Sessions in such cases may take cognizance of those cases. Section 194 provides that all Sessions Cases may be tried either by the Additional Sessions Judge or Assistant Sessions Judge.
10. Then comes Section 195, which deals with the prosecution for contempt of lawful authority of public servants, for offences against public justice and for the offences relating to documents given in evidence. It provides that no court shall take cognizance of any offence mentioned in that section. This provision is therefore an exception to Section 190. A ban is imposed on the Magisterial courts not to take cognizance of any offence mentioned in that section. Section 196 provides for offence against the State and for criminal conspiracy to commit such offence. 197 deals with prosecution on public servants. Section 198 deals with prosecution for offence against marriage. 198 (a) deals with offence under Section 498-A of IPC. Section 199 deals with prosecution for defamation. We are however concerned in these cases only with Section 195. To consider the rival contentions it will be necessary in our opinion, to note the section verbatim:
'195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence-
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, Section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in Section 463, or punishable under section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii), except on the complaint in writing of that Court, or of some other court to which that court is subordinate.
(2) Where a complaint has been made by a public servant under Clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court, and upon its receipt by the court, no further proceedings shall be taken on the complaint.
Provided that-
no such withdrawal shall be ordered if the trial in the court of first instance has been concluded.
(3) In Clause (b) of Sub-section (1) the term 'Court' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purpose of Clause (b) of Sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court the Appellate Court of inferior jurisdiction shall be the court to which such Court shall be deemed to be subordinate;
(b) Where appeals lie to a civil and also to a Revenue court, such court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.'
11. The submission made on behalf of the petitioners is that the bar under Section 195 squarely applies for taking cognizance of the complaint filed by the respondents. It speaks for offences under Sections 193 to 196 of I.P.C. It speaks of offences under Sections 464, 471 of IPC and therefore the learned Magistrate has no jurisdiction to take cognizance of any of the offences. The submission is that even if some other offences not mentioned in Section 156(3) are levelled by the complaint, then also cognizance cannot be taken because they are related offences arising out of the same transactions. the submission in nutshell is that because there is total ban of taking of cognizance of these offences, filing of complaint itself is futile and therefore complaint should be quashed. The reply is that what is banned by Section 195 of the Code is taking of cognizance by the Magistrate and that stage is yet to arrive. The learned Magistrate is only called for report under Section 156(3) of the Code. After the investigation is complete the report will be received. What that report will be no body knows. It an be that the investigation has disclosed no offence in which case, nothing further is required to be done. The report could be that prima facie certain offences are disclosed by the investigation in which case process will be issued by the Magistrate taking cognizance of the matter. Relying on certain decisions of the Supreme Court it is pointed out by the counsel for the petitioner that even at that stage before the Magistrate they may not be in a position to challenge the issue of process. Hence the petition be entertained and the complaint itself be quashed at this stage. It is this dispute regarding the entertainment of complaint as initiation of proceedings and issuance of summons after taking cognizance of the matter, the petitioner's claim that order calling for investigation under Section 156(3) is initiation of the proceedings in the meaning of Chapter XIV and such initiation itself is barred by Section 195.
12. In our opinion, the provisions of Chapter XV are also liable to be noted in that regard. It deals with complaints to Magistrate. Section 200 provides for examination of the complaint and issuance of process. Section 201 deals with cases where the Magistrate is not competent to take cognizance in which if the complaint is in writing, he shall return it for presentation before proper court with endorsement and if it is not in writing directing the complainant to proper court. Then Section 202 provides for postponement of issue of process. It provides that any Magistrate on receipt of a complaint, may if he thinks fit postpone the issue of process against accused and either enquire into the case himself or direct an investigation to be made by a police officer. Section 203 talks of dismissal of the complaint. It will thus be seen that before taking cognizance of any offence under any complaint filed under Section 200 of the Code the Magistrate can postpone taking of cognizance and direct the investigation which may be made by the police. It is after the investigation report is received that the Magistrate can decide as to whether he should take cognizance because primafacie cognizable offence is disclosed by the investigation or refuse to take cognizance as it is barred by Section 195 if the police report discloses offences mentioned in Section 195.
13. All that has been done in the present case is an order under Section 156(3) of the Code requiring investigation by a particular wing of the police of the State of Maharashtra is passed and it is at this stage the petitioners have moved this court for exercise of its extra ordinary jurisdiction under Article 226. Factually an order under Section 156(3) of the code can be revised by a Sessions Judge or by this court under Section 397 read with 401 of the Code. Even for that purpose therefore alternate remedy is available to the petitioners. Apart from that mere order directing investigation does not cause any injury of irreparable nature, which requires quashing of even the investigation. All that has been ordered is investigation into the complaint.
14. Whether such quashing is permissible or not is the question. We will examine it in the light of the decisions of the Supreme Court of India in this regard.
15. The following cases were cited at the bar on behalf of the petitioners in all the petitions:
1. Sardul Singh v. State of Haryana, reported in .
2. Joginder Kumar v. State of U.P. and Ors. reported in : 1994CriLJ1981 .
3. Central Bank of India and Anr. v. Saxon Farms and Ors. reported in : AIR1999SC3607 .
4. R.P. Kapur v. State of Punjab reported in : 1960CriLJ1239 .
5. Harshadbhai C. Patel v. Indravadan P. Shah and Anr. reported in C.R.A. No. 414 of 1985, decided on 25-11-1985.
6. Dilipkumar J. Jain v. State of Maharashtra reported in : 2001(5)BomCR223 .
7. Balasubramaniam v. State by SI Police T.N. and Anr. reported in 2002 S.C.C. (Cri) 1912.
8. Gita Ram Kalsy v. Mathura Dass reported in AIR 1951 P&h; 869.
9. K. Karunakaran v. T.V. Eachara Warrier and Anr. reported in : 1978CriLJ339 .
10. Vindhya Basini Prasad and Ors. v. State of U.P. and Anr. reported in .
11. Murugesan and Ors. v. State of Tamil Nadu reported in 1989 Cri.L.J. 1833.
12. State of U.P. v. Suresh Chandra Srivastava and Ors. reported in : 1984CriLJ926 .
13. State of Karnataka v. Hemareddy and Anr. reported in : 1981CriLJ1019 .
14. Kamla Prasad Singh v. Hari Nath Singh and Anr. reported in : 1968CriLJ86 .
15. Patel Laljibhai Somabhai v. The State of Gujarat reported in 1971 S.C.C.(Cri.) 548.
16. Sachidanand Singh and Anr. v. State of Bihar and Anr. reported in (1998)2 S.C.C 493.
17. M.S. Ahlawat v. State of Haryana and Anr. reported in 2000 S.C.C.(Cri) 193.
18. Nalinakhya Bysack v. Shyam Sunder Haldar and Ors. reported in : [1953]4SCR533 .
19. Union Bank of India v. Avinash P. Bhonsale reported in 1991 (3) Bom. C.R. 735.
16. All these cases pertain to application of Section 195 of the Code to the facts of each case on merits. In these petitions we are concerned with an order of investigation made prior to taking of cognizance of the complaint.
17. The stage of cognizance would arise after the investigation report is filed and bar provided by Section 195 of the Code regarding taking of cognizance would be applicable thereafter. We need not therefore consider any of these decisions as they are on the merits of the case.
18. The following cases on which reliance was placed by the respondents praying for rejection of the petitions are liable to be noted.
1. State of U.P. v. Suresh Chandra Srivastava and Ors. reported in : 1984CriLJ926 .
2. State of Bihar and Anr. v. J.A.C. Saldanha and Ors. reported in : 1980CriLJ98 .
3. Sushil Kumar and Ors. v. State of haryana and Ors. reported in : 1988CriLJ427 .
4. Mahavir Prasad Gupta and Anr. v. State of National Capital Territory of Delhi and Ors. reported in (2000) 8 A.C.C. 115.
5. Sachidanand Singh and Anr. v. State of Bihar and Anr. reported in (1998) 2 S.C.C. 493.
6. M. Krishnan v. Vijay Singh and Anr. reported : 2001CriLJ4705 .
7. Jumma Masjid Mercara v. Kodimaniandra Deviash and Ors. reported in : AIR1962SC847 .
8. Mohomed Syedol Ariffin v. Yeoh ooi Gark reported in Indian Appeals Vol.XLIII-257.
9. Budha Ram v. State of Rajasthan reported in 1963(2) Cri.L.J. 698.
10. Sanmukhsingh and Anr. v. The King reported in AIR 1950 P.C. 31.
11. Motisingh Gambhirsingh v. The State reported in : AIR1961Guj117 .
12. Manohar M. Galani v. Ashok N. Advani and Anr. reported in : 2000CriLJ406 .
13. State of Punjab v. Raj Singh and Anr. reported in : 1998CriLJ1104 .
14. Patel Laljibhai Somabhai v. The State of Gujarat reported in : 1971CriLJ1437 .
15. Mahadev Bapuji Mahajan and Anr. v. State of Maharashtra reported in : 1994CriLJ1389 .
16. Surjit Singh and Ors. v. Balbir Singh reported in : 1996CriLJ2304 .
19. The Supreme Court has observed in the case of Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, : (1997)2SCC397 that the writ jurisdiction should be sparingly used. We would like to note verbatim what the Supreme Court has to say:
'It is well-settled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. In State of H.P. v. Prithi Chand two of us (K. Ramaswamy and S.B. Majmudar, JJ.) composing the Bench and in State of U.P. v. O.P. Sharma a three-Judge Bench of this Court, reviewed the entire case-law on the exercise of power by the High Court under Section 482 of the Code to quash the complaint or the charge-sheet or the first information report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the court.'
It will be seen therefore that the writ jurisdiction has to be exercised very circumspectively.
20. In Satvinder Kaur v. State (Govt. of NCT of Delhi) and Anr., : AIR1999SC3596 same proposition was reiterated in para 16 and a passage from the judgment of the Supreme Court in the case of State of Kerala v. O.C. Kuttan, : 1999CriLJ1623 was quoted with approval. The observations in (1999) 2 SCC read as under:
'Having said so, the Court gave a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U.P. v. O.P. Sharma a three-Judge Bench of this Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three-Judge Bench of this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole.
It will be seen from the question above that the Supreme Court has consistently said that the exercise of jurisdiction under Article 226 of the Constitution or Section 482 of Cr.P.C. should be very sparingly done in case of Rashmi Kumar v. Mahesh Kumar Bhada. The Supreme Court has sounded a word of caution, stating that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. It is therefore necessary for us to follow this caution and examine whether any miscarriage of justice is likely to be caused by not quashing the proceedings. It will be seen that what is impugned before us is the order passed under Section 156(3) of the Code which directs investigation into the complaint by a particular wing of the police. What is going to be the outcome of that investigation is not known. Everything that can happen thereafter can be scrutinised and rescrutinised by judicial authorities mentioned in the Code and there is therefore no question of miscarriage of justice being caused by not quashing of the complaint and order.
21. Learned counsel for the respondents heavily relied on a decision of the Supreme Court reported in : 2000CriLJ4665 wherein it has been observed by the Supreme Court that power under Article 226 of the Constitution of India should be exercised with circumspection in only rarest of rare case such as where the complaint does not disclose any offence. We may note following observations of the Supreme Court:
'The power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. One such case would be when the complaint itself does not disclose any offence.
The present is not such a case. The court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint or as to whether the allegations in the complaint are likely to be established by evidence or not.'
22. It is not therefore open for us to decide as to whether averments in the complaint are reliable or genuine and whether cognizance is liable to be taken or not. It is the exclusive jurisdiction of the Magistrate trying the offence and not for the High Court to decide at such premature stage.
23. Yet another decision of the Supreme Court reported in : 2000CriLJ406 wherein the Supreme Court has observed that High Court should be loath in interfering the complaints and enquiries at the preliminary stage.
24. We would like to note the observations by the Supreme Court in this case in para 5 thereof.
'5. So far as the quashing of the complaints and inquiry and on the basis of FIR registered by the complaint are concerned, we also find that the High Court was not justified in interfering with the same and quashing the proceedings by an elaborate discussion on the merits of the matter and incoming to the conclusion that Section 195 of the Code of Criminal Procedure will be a bar. In our opinion, it was rather premature for the High Court to come to the aforesaid conclusion and on account of the orders passed, the investigation into several serious allegations are being throttled. We, therefore, set aside the orders quashing the two complaints and the investigation made thereunder an direct that those cases may proceed in accordance with law. Needless to mention, our setting aside the impugned order does not tantamount to expression of our opinion on merits and the accused, therefore, may not feel aggrieved and are entitled to take any appropriate remedy that is available to them under the law.'
25. It will be seen therefore that provisions of Section 195 bar taking of cognizance and not investigation prior thereto. From the aforesaid observations of the Supreme Court we are definitely of the view that interference at this stage which is prior to cognizance on possibility of operation of the bar contained in Section 195 of the Code, is impermissible.
26. Yet another decision of the Supreme Court of India was brought to our notice by Mr. Chinoy, learned counsel appearing for the respondent in one of the petitions. It is reported in : 1998CriLJ1104 where the Supreme Court has very clearly observed in para 2 as under:
'From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr.P.C.; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) Cr.P.C., but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 Cr.P.C. The judgment of this court in Gopalakrishna Menon v. D. Raja Reddy on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 Cr.P.C.'
27. From the aforesaid judgment of the Supreme Court quoted by us we are sure that there is no bar in ordering investigation into complaints though taking of cognizance may be barred by provisions of Section 195.
28. From the aforesaid discussions it is clear that the petitions are premature and there is no need for exercising jurisdiction of this Court under Article 226 as it is not rarest of rare case where irreparable loss would be caused to the petitioners if mere investigation goes on.
29. That brings us to the submission made on behalf of the petitioners that the entire purpose of the complaint is to see that the petitioners or some of them are arrested by the police during the course of investigation so as to result in their defamation or causing them severe harassment. We need not be dilate much on this point as care can be taken by directions issued by this Court to protect the interest of the petitioners in that regard reasonably. In our opinion, petitions are devoid of any merits and are liable to be dismissed.
30. Considering the ratio of the above quoted cases, it is obvious to us that these petitions are not fit cases for exercise of our extra ordinary jurisdiction under Article 226 of the Constitution. The complaint filed is certainly not one for categorisation as rarest of rare. The injury complained of by filing of the complaint and making of the order under Section 156(3) Cr.P.C. is that there would be some harassment to the petitioners as they are accused persons.
31. We have also noted above that several efficacious alternate statutory remedies under the Cr.P.C. are available to the petitioners to challenge the order under Section 156(3). Without availing them the petitioners have rushed before this court, claiming exercise of its extra ordinary jurisdiction under Article 226. In our opinion therefore, there is no need to exercise this jurisdiction to quash merely the complaint and order under Section 156 Cr.P.C. requiring investigation into complaint by the police. The petitions are therefore liable to be dismissed.
32. Today when this matter was called out for pronouncement of our judgment, which is ready, Misc. Criminal Application No. 3002 of 2003 is filed by the original petitioner in W.P.No. 900 of 2003. It was heard and is to be disposed of along with these petitions by this order which we are now pronouncing.
33. By this application, the petitioner Yogendra Sachdev prays that:
'That this Hon'ble Court be pleased to take cognizance of the settlement/compromise between the Petitioner and the Respondent No. 2 and pass an order in terms of prayer Clause (a) to the W.P. No. 900 of 2003.'
34. We would like to note here that prayer (a) in all the petitions is identical, praying for quashing of the Criminal Case No. 12/I & R/03 pending in the 23rd Court of Metropolitan Magistrate at Esplanade, Bombay, which is now renumbered as MECR No. 12/2003.
35. This application therefore in effect prays for quashing of the complaint in MECR No. 12/03 as parties thereto have settled the matter interse. Reliance was placed on a judgment of Delhi High Court reported in 2002 (2) JCC page 1103, where it was held by the Delhi High Court that such quashing is permissible. Thereafter, it was followed by this court in Cri.W.P. No. 1672/02 dated 20-12-2002.
36. In view of the fact that quashing of such complaint is permissible in law, the request is that here also it be allowed to be so done.
37. When this application was presented before this Court. Mr. Nitin Pradhan appearing for Hargreaves company filed another application No. 3023/03 seeking intervention of that company in Cri.Application No. 3002/03 filed by Silicons and Smay company. We have heard Mr. Pradhan on this application for intervention. We have heard the parties on the application No. 3002/03 on the question of withdrawal and quashing of the complaint. In our opinion such prayer can be granted. The request of Mr. Pradhan is that he also has civil and criminal rights for which he also can take up independent proceedings both in the civil and criminal court. Our pronouncement of this judgment will not in any manner affect or interfere with any of the right whether civil or criminal of either Hargreaves company or anybody else, who is not a party to this litigation. In our opinion the interest of this present applicant and similarly situated persons are covered by this.
38. We also make it clear that all our observations made in this judgment are for the purpose of adjudicating only the question of maintainability or otherwise of such quashing of the petitions. It is also obvious and we make it abundantly clear that all the observations in this judgment having been made solely for the purpose of deciding the question of maintainability of such complaint for quashing, also ill not affect the parties of this litigation in their civil and criminal litigation which is pending or may commence. We also note that the complainant in the original complaint is also duly represented before us and a statement on behalf of him has recorded that the compromise mentioned in the application is true and correct. We therefore pass the following order.
ORDER
1. Therefore though we are of the view that the petitions are liable to be dismissed as pre-mature, taking into consideration the law cited and observations made in the paras 35 & 36 we accept the request of the petitioner that they have compromised between them, proceedings in criminal case No. MECR 12/03, are hereby quashed.
2. As a consequence of quashing of the complaint, the investigation so far done by the investigating agency are also quashed.
3. All these petitions are accordingly disposed off.
4. The application for intervention bearing No. 3023/03 is therefore rejected with liberty to applicant therein to take appropriate civil and criminal proceedings if and when so advise.
Certified copy expedited.
Parties to act on the authenticated copy of this order.