In the case of Gowramma (supra), Hon'ble Apex
Court has held that a case is a precedent and binding for what it
explicitly decides and no more. This would include the principles
on which the decision is founded. So, one has to also ascertain
the principles on which founded is the decision in the case of
Mona Panwar (supra). They, inter-alia, are that after the
complaint is presented to the Magistrate, the Magistrate would
have two options, one directing investigation under Section 153
Cr.P.C. and two, taking cognizance of the offences under Section
200 Cr.P.C. and proceeding in the matter under the provision of
Section 200 Cr.P.C. If, the learned Magistrate has taken one of
these two options and if it is seen that exercise of discretion in
choosing one of the options is not arbitrary or has not resulted
in the abuse of process of the Court or has not caused any
injustice to the complainant, the exercise of such a discretion
cannot be interfered with by this Court by invoking it's power
under Section 482 Cr.P.C.
13. In the instant case, no doubt, reasons for rejection of
the prayer for seeking direction to the police for making
investigation as provided under Section 153 Cr.P.C. are not
stated. But, in my view, it has not resulted in causing of any
prejudice to the complainant nor has it resulted in miscarriage
of justice in this case. The reason being that what the learned
Magistrate has directed is only examination of complainant that
is the applicant and his witnesses, if any, as provided under
Section 200 Cr.P.C. and nothing more. Further course of action
is still open to the applicant and it is to convince the learned
Magistrate of the need for postponing issuance of process and
directing police investigation under Section 202 Cr.P.C. In the
case of Rameshbhai Pandurao Hedau this is what the Hon'ble
Apex Court has stated. Hon'ble Apex Court has held that the
only difference under Section 153(3) and 202 Cr.P.C. is the
stage at which the power to direct police investigation may be
invoked. The power to direct investigation by police under
Section 156(3) Cr.P.C. is at the pre-cognizance stage, while the
power under Section 202 is at the post-cognizance stage. Such
being the difference between these two sections, no prejudice or
injustice can be said to have been caused to the complainant in
this case.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPLICATION (MAIN) NO. 172 OF 2015
Shri Rui Ferreira, s/o Dr. Joao Filipe
V
The Police Inspector, Panaji
CORAM:- S.B. SHUKRE, J.
DATE:- 4th FEBRUARY, 2016.
Citation: 2016 ALLMR(CRI)4742
2. A complaint was filed by the applicant before the
Court of Judicial Magistrate First Class at Panaji contending that
he is the share holder of Goa Urban Co-operative Bank Limited
and therefore, concerned for welfare and interest of the bank.
He submitted that he noticed a fact that one Mr. Sham Naik, was
appointed by the bank on contract basis, although he was a
former employee of the bank who had been allowed to take
voluntary retirement from the bank. It was further submitted
by learned Counsel for the applicant that under the Voluntary
Retirement Scheme-2005, once an application of an employee
seeking his voluntary retirement from the bank is allowed, his
association with the bank in any manner is not permissible and
in no case, such an employee can be recruited or appointed on
contract basis. He submits that the fact that Mr. Naik was
appointed by the bank amounted to committing of fraud by the
bank as the funds of the bank stood misappropriated. So, the
applicant filed a police complaint dated 27.02.2013. However,
no action was taken by the police.
3. The applicant, therefore, filed a criminal complaint
before the Judicial Magistrate First Class, Panaji alleging all
these facts. In this complaint, the applicant prayed for issuance
of directions to the respondents, that is the Police Inspector,
Panaji police station and Superintendent of Police (North), Goa
for registration of F.I.R. for offences punishable under Sections
404, 406 and 420 IPC against Mr. Sham Naik and one more
person Mr. Vishnoo Naik, the Chairman and the principal
administrator of the bank, who had acted in collision with Mr.
Sham Naik. The applicant also sought a direction to the police
to investigate the matter properly and submit it's report to the
Court.
4. Learned Magistrate, upon perusal of the complaint,
the documents filed therewith and also the reply of the police,
passed the following order:
“Perused the application and documents.
Perused reply filed. Heard Adv. Ryan Menezes
for the applicant/complainant. Perused caselaw.
I find that cognizable offences are said to
have been committed by the persons named
in the complaint dated 27/02/2013. The
complainant is directed to examine himself
and his witnesses if any as cognizance is
hereby taken u/s 200 Cr.P.C. in view of the
ratio in Mona Panwar Vs. Hon'ble High Court
of Judicature at Allahabad (2011/SC).”
5. It is contended by learned Counsel for the applicant
that the Magistrate has wrongly applied the ratio of the case of
Mona Panwar Vs. High Court of Judicature of Allahabad,
(2011) 3 SCC 496, to the facts of this case and erroneously
took cognizance of the offences under Section 200 Cr.P.C. He
submits that a decision is the authority for what it actually
decides and that the ratio in the case of Mona Panwar (supra)
was that whether in the facts and circumstances of that case,
the order passed by the Magistrate taking cognizance of the
offences alleged therein under Section 200 Cr.P.C. was correct or
not and while answering this question, Hon'ble Supreme Court
held that the Magistrate exercised her discretion correctly. He
submits that the facts considered by Hon'ble Apex Court were
that the complainant therein had alleged committing of an
offence of rape by her father-in-law and that the complainant
knew the accused and was also well acquainted with the
witnesses. Therefore, taking cognizance of such an offence
under Section 200 Cr.P.C. was seen by Hon'ble Apex Court as a
proper course adopted by the Magistrate. He further submits
that the facts of this case are quite different and they show that
the complainant, although a share holder, does not have any
control over the bank and its officers and therefore, would not
be in a position to produce the relevant evidence and rather
would require help of the police and as such police investigation
is absolutely necessary.
6. Learned Counsel for the applicant further submits
that the impugned order ought to have stated the reasons as to
why the prayer made by the applicant specifically seeking
direction to the police under Section 156(3) Cr.P.C. was not
granted, and as to why the learned Magistrate decided to
proceed under Section 200 Cr.P.C. instead. On this count also,
learned Counsel for the applicant submits, the impugned order
passed by the learned Magistrate and also another impugned
order passed by the learned Sessions Judge upholding the order
of the Magistrate dated 24.09.2013, deserve to be quashed and
set aside.
7. Mr. Amonkar, learned Additional Public Prosecutor for
the State submits that there is nothing illegal or arbitrary in the
orders impugned herein. He further submits that the complaint
itself indicates an alternate prayer to the effect that any such
order as deemed fit by the Court may be passed, and which has
been actually considered by the Court by exercising its
discretion appropriately. He submits that at the stage of
deciding the question of taking of cognizance, it is not expected
of a Magistrate to give detailed reasons as if findings regarding
guilt of the accused are being recorded. He submits that even
in the case of Mona Panwar (supra), Hon'ble Apex Court has
laid down that when the complaint is presented to a Magistrate,
the Magistrate would have two options, one to pass an order as
contemplated under Section 156(3) Cr.P.C. and two, to direct
examination of the complainant upon oath and the witnesses
present, if any, as provided under Section 200 Cr.P.C.
8. Learned Additional Public Prosecutor further submits
that while exercising discretion under Section 482 Cr.P.C., it
must be seen by the High Court that there is no abuse of
process of the Court and that ends of justice are secured. He
submits that if no prejudice is caused to the complainant, there
would be no case for invoking Section 482 Cr.P.C. power. He
submits that what has been ordered by the learned Magistrate is
only examination of the complaint and the witnesses present, if
any, under Section 200 Cr.P.C. and the stage of issuance of
process is still there. He also submits that under Section 202
Cr.P.C., a police investigation, as sought for by the applicant,
can always be sought from the Magistrate. Therefore, he
submits that in the instant case there is neither abuse of the
process of the Court nor any injustice caused to the applicant.
9. In support of his contentions, learned Counsel for the
applicant has placed reliance upon the case of Government of
Karnataka and Others Vs. Gowramma and Others,
2007(13) SCC 482. He has also referred to the case of Mona
Panwar (supra), to demonstrate as to how it's ratio is not
applicable to the present case.
10. Learned Additional Public Prosecutor has placed
reliance upon the case of Rameshbhai Pandurao Hedau Vs.
State of Gujrat, AIR 2010 SC 1877, in support of his
contention that the Magistrate has not committed any error in
refusing the applicant's prayer for an investigation by the police
under Section 153 Cr.P.C. and deciding to proceed under
Section 200 Cr.P.C. instead.
11. In the case of Mona Panwar (supra), Hon'ble Apex
Court, has held that the order passed by the learned Magistrate
taking cognizance of the offences under Section 200 Cr.P.C. and
proceeding in the matter as provided in that section was not
erroneous. The facts and circumstances of that case disclose
that the complainant therein being a victim of the alleged
offence of rape knew the accused and also the witnesses and so
the Magistrate decided to proceed under Section 200 Cr.P.C. and
onwards. Therefore, the ratio of that case would have to be
understood in the back ground of these facts of that case.
12. In the case of Gowramma (supra), Hon'ble Apex
Court has held that a case is a precedent and binding for what it
explicitly decides and no more. This would include the principles
on which the decision is founded. So, one has to also ascertain
the principles on which founded is the decision in the case of
Mona Panwar (supra). They, inter-alia, are that after the
complaint is presented to the Magistrate, the Magistrate would
have two options, one directing investigation under Section 153
Cr.P.C. and two, taking cognizance of the offences under Section
200 Cr.P.C. and proceeding in the matter under the provision of
Section 200 Cr.P.C. If, the learned Magistrate has taken one of
these two options and if it is seen that exercise of discretion in
choosing one of the options is not arbitrary or has not resulted
in the abuse of process of the Court or has not caused any
injustice to the complainant, the exercise of such a discretion
cannot be interfered with by this Court by invoking it's power
under Section 482 Cr.P.C.
13. In the instant case, no doubt, reasons for rejection of
the prayer for seeking direction to the police for making
investigation as provided under Section 153 Cr.P.C. are not
stated. But, in my view, it has not resulted in causing of any
prejudice to the complainant nor has it resulted in miscarriage
of justice in this case. The reason being that what the learned
Magistrate has directed is only examination of complainant that
is the applicant and his witnesses, if any, as provided under
Section 200 Cr.P.C. and nothing more. Further course of action
is still open to the applicant and it is to convince the learned
Magistrate of the need for postponing issuance of process and
directing police investigation under Section 202 Cr.P.C. In the
case of Rameshbhai Pandurao Hedau this is what the Hon'ble
Apex Court has stated. Hon'ble Apex Court has held that the
only difference under Section 153(3) and 202 Cr.P.C. is the
stage at which the power to direct police investigation may be
invoked. The power to direct investigation by police under
Section 156(3) Cr.P.C. is at the pre-cognizance stage, while the
power under Section 202 is at the post-cognizance stage. Such
being the difference between these two sections, no prejudice or
injustice can be said to have been caused to the complainant in
this case.
14. Now, dealing with the other argument about absence
of reasons, I must state, giving no reasons for adopting one of
the courses available after the complaint is filed is one thing and
denial of opportunity to prove the case of the complainant is
another. These orders are passed at preliminary stages, which
sometimes, due to pressure of work or otherwise, may not
disclose reasons. But, preliminary as they are, they need to be
examined for their legality or correctness, from the view point of
their impact on the complainant's case. This is not to say that
reasons are not to be stated. Reasons form the soul of any
judicial order. The order impugned herein is also a judicial
order. But, while examining a preliminary order, like the one
impugned herein, perspective changes. If by absence of
reasons, serious prejudice or miscarriage of justice occurs, only
then, in my opinion, and as rightly submitted by learned
Additional Public Prosecutor, such an order can be upset by
invoking power under Section 482 Cr.P.C. But, such is not the
case here.
15. Thus, it would be seen from the above discussion that
this is not a case where Mona Panwar (supra) has been
improperly applied by the learned Magistrate. Ultimately, it is
the principle on which the decision is based that is a binding
precedent. No fault can be found with the orders impugned
here. The Application must fail. The Application stands
dismissed.
S. B. SHUKRE, J.
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