Sunday, 24 February 2019

Whether court can direct police investigation during course of civil proceeding?

These judgments are a complete answer to the arguments of Mr. Kadam, who would rely upon section 13 of the Commercial Courts Act, 2015 and the language of section 104 and Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908. Mr. Kadam would argue that the order passed by the learned Single Judge is not appealable because it is not specifically enumerated in Order XLIII Rule 1 of the Code of Civil Procedure, 1908. It cannot be held to be appealable by relying on clause (15) of the Letters Patent, which is expressly overridden by sub-section (2) of section 13 was his submission. We are unable to accept it and for more than one reason. The learned Single Judge in this case was seized of an application for interim relief/injunction made in a IP(L) Commercial Suit. He was, therefore, seized of a commercial dispute. He was aware that in a commercial dispute as was brought before him, there was a request made to grant interim reliefs or interlocutory injunction or the prayer for appointment of court receiver. He was, therefore, obliged to consider that request within the four corners of the law. The four corners of the law included the Code of Civil Procedure and Order XXXIX and XL Rules 1 and 2 thereof. The other applicable provision was section 94 of the Code of Civil Procedure, 1908. Therefore, the request to grant reliefs as claimed by the plaintiff could have been considered on the touchstone of these provisions and the legal principles interpreting the powers in relation thereto. The learned Single Judge assumed that during the course of exercise of such powers as are enumerated in Order XXXIX and XL, he can also summon the police officials, direct them to carry out an investigation and submit report of that to him, particularly on the aspect as to whether the parties brought before him are prima facie guilty of any offence punishable under the Trade Marks Act, 1999 and the Indian Penal Code, 1860. The learned Single Judge then went ahead and found that given the nature of the allegations, it is necessary to recommend constitution of a SIT and he observed accordingly. Relying upon his observations and the remarks during the course of consideration of the application for interim reliefs, the police machinery stepped in, it constituted such SIT and submitted its report from time to time to the learned Single Judge who considered these reports and made further observations which had a definite bearing on the rights of those brought before him. These rights pertain to their life and liberty. The learned Single Judge, unmindful of the consequences of such recommendations/opinions/observations has gone ahead and termed their acts as punishable offences. In view of these sweeping directions and observations, there is enough material to conclude that the learned Single Judge took over the powers of a competent criminal court in making such orders. That is how we have proceeded by applying the aforementioned legal principles and to the effect that if the ad-interim or interim orders passed in exercise of the powers conferred vide Order XXXIX and XL of the Code of Civil procedure, 1908 are appealable orders, then, issuing directions beyond the same would definitely permit us to interfere with the impugned orders and to prevent serious miscarriage of justice. That is how we have entertained these appeals.

74. We have not set down any wide or broad legal proposition and which can be applied to every case. We clarify that it is only in the above facts and circumstances that these legal principles would apply. They cannot be applied to all cases irrespective of the peculiar facts and circumstances therein. Ultimately the application of the above legal principles and also those enumerated in para 34 of our order in the case of Shailendra Bhadauria (supra) would arise in the facts and circumstances of each case. No general rule has been laid down by us.

75. While we interfere with the Impugned orders and to the extent that the learned Judge could not have called upon the police officials to remain present before him nor could he summon all the parties to the suit personally as if they were accused before a criminal court, we do not intend to confer any benefit to those who are involved in criminal acts. If there is an element of criminality in their acts, then, that has to be taken care of by recourse to criminal law. No amount of interference by us in the impugned orders and directions would enable those proceeded against to contend and urge that the investigations have been carried out by a police official not at all competent to carry them out. They may raise issue and pleas about the legality and validity of the investigation, but we express no opinion on such contentions. All that we direct is that the report of all these investigations be placed before the competent criminal court. It is for the competent criminal court to express any opinion on the legality and validity of such investigations and the merits thereof when they are placed before it. Since all the reports of the investigations carried out till date are on the file of the civil suits in this court, we direct that they shall be forthwith transferred to the file of the competent criminal court. It is for the competent criminal court to then decide as to whether a prima facie case has been made out against the persons named therein and can a charge be framed against them. Once these reports are placed before the competent criminal court, it is its duty and function in accordance with the Criminal Procedure Code, 1973 to take an appropriate decision. That decision will be taken strictly in accordance with law. While taking that decision, the criminal court shall not be influenced by any opinion or expression of any opinion in the orders under challenge. Equally, the competent criminal court shall not be influenced by the fact that we have interfered with the orders under challenge and to the extent indicated above. We clarify that once the investigations have been carried out, it is not for us to unsettle them nor do we intend to scuttle them. If they are in process, let them be carried out and taken to their logical conclusion. The reports of such investigation be placed before the competent criminal court and it is for that court to then take a call and strictly in accordance with law. Presently, we do not give any declaration and as desired by the appellants, particularly to the effect that the investigations have been carried out without jurisdiction.

IN THE HIGH COURT OF BOMBAY

Commercial Appeal (L) No. 434 of 2018, Notice of Motion (L) No. 1002 of 2018, Commercial Appeal (L) No. 428 of 2018 and Notice of Motion (L) No. 996 of 2018

Decided On: 17.10.2018

Trident Steel and Engineering Co. Vs.  Vallourec and Ors.

Hon'ble Judges/Coram:
S.C. Dharmadhikari and B.P. Colabawalla, JJ.
Citation:2018 SCC OnLine Bom 4060

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