iqbal Singh Keer Vs. Shekharappa C. Nagathan and anr. - Court Judgment

Excerpt:
criminal - quash proceedings - section 482 of criminal procedure code, 1973 - in case it is demonstrated to high court that chances of conviction against a particular accused bleak - continuance of criminal proceedings would be wholly unjustified- conviction against such accused would be totally unjustified. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - vakil submits that the learned magistrate, even if he was satisfied that some of the accused deserved to be proceeded against, ought to have scrutinised the material placed before him and ought to have excluded those of the accused against whom there is no justification for proceeding in a criminal court. 3 and 4 who happened to be the employees of the petitioner at hubli and against whom the only charge is that they had taken delivery of the goods on behalf of the transporters and thereafter consigned the same, is wholly unjustified and that if this court is satisfied that the process should be quashed against original accused no. 3 and 4. 4. as far as this aspect of the case is concerned, it is now well settled that persons who are similarly situated and who would be covered by a decision of a court, be it a civil or a criminal proceeding, may not be required to go through the formal exercise of filing separate petitions before the court as the decision on the same set of facts would, undoubtedly, cover their case also. sampat has further submitted that there is a strong admission on the part of the accused no.m.f. saldanha, j.1. by this petition filed under the provisions of section 482 of the code of criminal procedure, the petitioner who is the managing director of karnataka maharashtra transport pvt. ltd., has challenged the issue of process against him in criminal cases no. 105 of 1982 in the court of the chief judicial magistrate at sangli. the learned magistrate had issued process against the petitioner under section 407 read with section 34 i.p.c.2. the brief facts that are relevant for purposes of decision are as follows :the petitioner, at the relevant time, was the managing director of a transport company. this transport company had branches at different places in the country and we are basically concerned with two of the branches, the first of them being the branch situated at hubli and the second one being the branch situated at madhav nagar, dist. sangli . admittedly, this particular company was not on the approved list of transporters with the indian banks association. messrs cargo movers of india, calcutta of which concern the accused no. 1 is the sole proprietor happened to be on the approved list of i.b.a. and under an internal arrangement, the petitioner's company used to transport goods that were entrusted to messrs cargo movers of india, calcutta. the complaint states, that between the months of august and november 1981, 219 packets of yarn were entrusted to messrs cargo movers india, calcutta, at hubli by the nandi hasbi textile mills ltd., (hereinafter referred to as the mills) for being transported to madhavnagar and being delivered to the original accused nos. 6 to 9. the documents in respect of this transaction were to be negotiated through the syndicate bank and consequently, it was a necessary condition that the goods could be delivered by the transporters only after the documents have been retired from the bank. it is the case of the complainant, however, that the documents were not retired as a result of which, the same had to be re-issued and re-submitted and when they were not retired on the second occasion, the matter was investigated into because the complainant mills were required to pay the entire amount to the bankers with interest. at this stage, the accused no. 5, who was the manager of the petitioner's company at madhavnagar issued a letter dated 22-2-1982 admitting that he had parted with the consignment without being first insisted on the documents being released from the bank. the accused nos. 6 to 9 in their letter to the mills, dated 14-2-1982, expressed regret for their conduct and assured the mills, that they would make payment. it appears that the mills were unable to recover the large amount of money being over rs. 3.25 lacs and consequently, the mills filed a complaint before the criminal court against 9 persons. the complaint is at exhibit 'a' to the petition. the present petitioner is the original accused no. 2.3. mr. vakil, learned counsel appearing on behalf of the petitioner has assailed the issue of process principally on the ground that no criminal case can be said to have been made out against accused no. 2. mr. vakil submits that the learned magistrate, even if he was satisfied that some of the accused deserved to be proceeded against, ought to have scrutinised the material placed before him and ought to have excluded those of the accused against whom there is no justification for proceeding in a criminal court. to this extent, mr. vakil has submitted that though the petitioner no. 2 has moved this court, that the original accused nos. 3 and 4 who happened to be the employees of the petitioner at hubli and against whom the only charge is that they had taken delivery of the goods on behalf of the transporters and thereafter consigned the same, is wholly unjustified and that if this court is satisfied that the process should be quashed against original accused no. 2, that similarly, the criminal proceedings should be quashed against the original accused nos. 3 and 4.4. as far as this aspect of the case is concerned, it is now well settled that persons who are similarly situated and who would be covered by a decision of a court, be it a civil or a criminal proceeding, may not be required to go through the formal exercise of filing separate petitions before the court as the decision on the same set of facts would, undoubtedly, cover their case also. mr. vakil has drawn my specific attention to a division bench judgment of this court reported in 75 bombay law reporter, page 417 in the case of esso standard inc. v. udharam bhagwandas japanwala, wherein this court, after analysing the law on the point in some detail, has enunciated the principal that it is permissible in exercise of the powers under section 482 cr.p.c. while quashing the proceedings against one accused, to also quash proceedings against other accused if no case has been made out against those accused also. i am in total agreement with the law as laid down in this decision and consequently, all that is to be scrutinised is as to whether the proceedings deserve to be quashed against the petitioner and if, in that event, whether any of the other accused, even though they have not moved this court, are entitled to the same order.5. mr. vakil has pointed out that, on a scrutiny of the complaint, it will be evident that the case made out before the trial court was essentially to the effect that the original accused no. 5 is alleged to have fraudulently and dishonestly parted with the consignment to messrs balaji corporation i.e. the firm of which accused nos. 6 to 9 are the partners. as far as the present petitioner is concerned, the solitary charges against him in the complaint are to the effect as set out in paragraph 12 of the petition, that when he was asked about this particular matter, he is alleged to have given evasive replies and furthermore, as mentioned in paragraph 13 of the petition, the averment that the accused no. 5 is alleged to have acted in consultation with the accused nos. 1 and 2. admittedly, the present petitioner had his office at bombay and there is not even a passing reference in the complaint to the effect that at any point of the transaction, accused no. 2 was even aware of what was happening. in order to establish his bona fides, mr. vakil has produced before me copies of certain circulars issued by the head office of the company to accused no. 5 and to all the branches to the effect that special care should be taken to ensure that as far as the consignments of this type are concerned that they are not delivered to wrong parties or to a party in breach of conditions of entrustment. quite apart from this, on a scrutiny of the complaint and an overall view of the matter, i am in total agreement with the submissions advanced by mr. vakil to the effect that the involvement of the original accused no. 2 is wholly unjustified. even as far as original accused nos. 3 and 4 are concerned, there was no material whatsoever before the trial court for the issue of process against them and consequently, as far as these two accused are concerned, the proceedings would also have to be quashed even though they have not filed any petition before this court.6. dealing with the law on the point, mr. vakil has drawn my attention to a recent judgment of this court reported in 1989(1) cri 361 bombay, in the case of ajit t. mirchandani & another v. chandra indrasen mirchandani & another. in that judgment, daud, j., relying on the decision of the supreme court in the case of madhavrao jiwajirao scindia v. sambhajirao chandrojirao angre, : 1988crilj853 has reiterated the principle that the continuance of criminal proceedings would be wholly unjustified in those of the cases where it is demonstrated to the high court that the chances of a conviction against a particular accused are bleak. on a scrutiny of the present record, i have no hesitation in holding that the chances of a conviction as against original accused nos. 2, 3 and 4 would not only be bleak or remote but that it would be virtually impossible. the continuation of the prosecution as far as these accused are concerned would, therefore, be wholly unjustified. dealing further with the same decision, mr. vakil has pointed out that daud, j., had occasion to deal with the question of scrutiny of material by the high court while exercising powers under section 482 cr.p.c. in the course of exercise of inherent powers, the enquiry before the high court is not regimented nor is it necessarily circumscribed only to looking at the copy of the complaint and the verification or such material that was placed before the magistrate. if there is material referred to in the complaint and order, if there is material that was deliberately withheld or if there is material that is so closely interwoven with the facts of the subject matter of the complaint that perusal of that material would undisputedly indicate to the high court that the magistrate was either misled or that material was suppressed from him or that had these material been shown to the magistrate, process would not have been issued, then the high court would certainly be justified in looking at that part of the record produced before it. in the present case, however, it is unnecessary to go into that aspect of the matter but for purposes of satisfying myself, i have looked at some of the connected correspondence which reinforces the view that i have taken above.7. mr. sampat, learned counsel appearing on behalf of the complainant has contended, that the accused no. 2 was shown as an accused before the trial court, principally because as the head of the company to whom the goods were entrusted and as the chief executive of the company which had ultimately wrongly parted with the goods and against whom the offence is alleged. the complainant was of the view that there is a deemed liability. mr. sampat has also pointed out that it is the complainant's grievance that the accused no. 2 did not, at the earliest point of time, give any satisfactory replies or explanation and it was for this reason that the name of the accused no. 2 had to be included in the present complaint. be that as it may, it would still not justify the continuance of the complaint against the accused no. 2.8. mr. sampat has further submitted that there is a strong admission on the part of the accused no. 5 with regard to the commission of the offence as also from accused nos. 6 to 9 and mr. sampat, therefore, submits that in so far as accused no. 5 was the employee of the accused no. 2, that the quashing of the complaint against accused no. 2 would not be justified. on the facts of this case, as set out by me, such various criminal liability cannot be attributed to accused no. 2 and consequently, the submission of mr. sampat to this extent cannot be accepted.9. in the result, the petition is allowed. the criminal proceedings being criminal case no. 105 of 1982, pending before the chief judicial magistrate at satara are quashed as against the original accused nos. 2, 3 and 4 only. the complainant shall be free to proceed with the prosecution against the original accused nos. 1, 5 and 6 to 9. rule is accordingly made absolute. interim stay stands vacated.