TaxTMI 
TaxTMI 
2023 (1) TMI 1326
X X X X Extracts X X X X
X X X X Extracts X X X X
.... High Court declined to exercise the jurisdiction under Section 482 Cr.P.C. holding that perusal of the case diary as also the materials appearing therefrom prima facie made out a case for investigation. In that view of the matter, the interim order granting stay of all further proceedings pursuant to the registration of the stated F.I.R. was vacated and the stated petition was dismissed. 2. It is to be noted that the aforesaid crime was registered pursuant to the forwarding of an application filed by the respondent herein under Section 156(3) Cr.P.C. raising the allegation against the persons named therein including the appellants, by the learned Magistrate for investigation and thereupon, investigation was commenced. The appellants herein assailed the very order for forwarding of the application for investigation under Section 156(3) Cr.P.C., the consequential registration of the said F.I.R. and also the ongoing investigation pursuant thereto, raising various contentions that the application moved by the respondent herein before the learned Magistrate did not disclose commission of any cognizable offence, that the allegations in the complaint are actuated by mala fides, that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t with respect to the position that jurisdiction under Section 482 Cr.P.C. is to be exercised with care and caution and sparingly. To wit, exercise of the said power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. Before referring to the relevant authorities on the scope of exercise of power under Section 482, it is only apposite to refer to application filed by the respondent herein before the Learned Additional Chief Judicial Magistrate at Barasat, which was numbered as C. Case No. 538/2017, against Shri Shankar Biswas, Shri Debashis Roy and the appellants herein seeking for a direction to conduct investigation under Section 156(3), Cr.P.C. The appellants herein were arrayed as accused Nos. 3 and 4 therein. In view of the nature of the contentions and recriminations raised by the appellants and the respondents in this appeal, it is only appropriate to extract the translated copy of the said application filed by the respondent herein as under :- "Translated Copy C/2687/17 Sd/- Jayanta Banerjee Filed by: Sd/- Illegible District - North 24 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving any information by strengthening the said Trust Deed illegally got the same registered on 12.07.2016 and removed the complainant illegally from this post from the said Trust. (The Xerox of two copies of the said Trust Deed are enclosed herewith). The complainant having made process of the said incident, the said person abused the complainant and assaulted him and Accused No. 1 and 2 said that if the complainant went to take previous steps then he would be kill. 3) The accused persons joke the complainant out of the said School by force illegally and withheld all necessary papers and documents of the complainant. The said accused persons have kept the L.I.C. Policy of the complainant (hearing No. 425670161) Bank Pass Book namely (Axis Bank Madhyamgram Branch A/C No. 547010100053181, Oriental Bank of Commerce, Madhyamgram Branch A/c. No. 07512010017260, Union Bank Madhyam Gram Branch A/C/ No. 5470002010009486 and A/C No. 570002010001131, put them under their custody. Sd/- Jayanta Banerjee Although the applicant made repeated request for returning the said document, they did not pay any heed to the same. The Accused persons have withheld the personal Tata Sum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation after getting it written and read over and writing and going through the same finding it to be written as per my instruction. Sd/- Jayanta Banerjee Signature of the Applicant. Signature of the Identifier Sd/- Illegible Advocate. (Endorsement) Sd/- Illegible Certified to be the English translation of an Application with Affidavit in Bengali. Sd/- 19/05/22 R. Islam Rtd. Senior Interpreting Officer O.S. High Court, Calcutta. TRUE COPY" (Emphasis added) 4. Before adverting to the rival contentions with reference to application under Section 156(3), Cr.P.C. within the parameters, we think it only appropriate to refer to the following decisions of this Court in respect to the scope of exercise of power under Section 482, Cr.P.C . 5.1 In Paramjeet Batra v. State of Uttarakhand & Ors. (2013) 11 SCC 673 , this Court held:- "12. While exercising its jurisdiction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the inves....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erty, or valuable security. Offence of criminal breach of trust punishable under Section 406, IPC. (i) Entrustment of the property or any dominion over property with accusation; (ii) The person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully causing sufferance to any other person so to do. Offence punishable under Section 423, IPC. The essential ingredients to constitute an offence under Section 423, IPC is that the sale deed or deed subjecting an immovable property to a charge was contained a false statement relating to the consideration or relating to the persons or whose use or benefit, it was intended to operate. Thus, it is evident that Section 423, IPC deals with twin specific frauds in the matter of execution of deeds or instruments of transfer or charge, idest, (i) false recital as to consideration or false recital as to the name of beneficiary. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....placed this incident before any Court heretofore". In the application, obviously, it is stated that he is one of the trustees of Bagla Sundari Memorial Trust at Basunagar Madhyagram and under the said trust there is a high school by name of Rose Bank Educare and he is the Secretary of the said school. The recital in paragraph 2 of the application filed by the respondent would reveal his case that the accused persons kept him in dark and without giving any information by strengthening the said trust deed illegally got the same registered on 12.07.2016 and removed him from the said post. It is in this context that the aforesaid statement in the aforesaid affidavit assumes relevance. It is the case of the appellants that in regard to his removal from the post of Secretary of the school, the respondent had instituted title suit No.363 of 2015, praying therein for a declaration that he is the Secretary of the school and the said suit is still pending. Despite the institution of the said suit and its pendency before the First Court of Civil Judge, Junior Division, Barasat the respondent made such a statement in the affidavit. That apart, what is stated in the application is that he is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd the ingredients to attract them, as adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of....