Bombay High Court
Enercon Gmbh And Ors vs The State Ofmaharashtra And Ors on 5 April, 2016
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3713 OF 2015
1. Enercon GmbH, a company incorporated
and existing under the laws of Germany and
having its registered office at Dreekamp 5,
D26605, Aurich Germany.
2. Dr.Aloys Wabben, German Inhabitant,
having his office at Dreekamp 5, D26605,
Aurich, Germany.
3. Hans-Dieter Kettwig,German Inhabitant
having his office at Dreekamp 5, D26605,
Aurich, Germany.
4. Stefan Knottnerus Meyer, German
Inbahitant having his office at Dreekamp 5,
D26605, Aurich, Germany.
5. Wolfgang Juilfs, German Inhabitant, having
his office at Dreekamp 5, D26605,
Aurich, Germany.
6. Nicole Fritsch-Nehring, German Inhabitant
having his office at Dreekamp 5, D26605,
Aurich, Germany.
7. Christoph Buttner, German Inhabitant,
having his office at Dreekamp 5, D26605,
Aurich, Germany.
8. Warner Popkes, German Inhabitant having
his office at 26789 Leer, Germany.
9. Rainer Boehm,German Inhabitant having
his office at Zippelhaus 5, 20457, Hamburg,
Germany.
... Petitioners
Versus
1. The State of Maharashtra (through the
Sr. Inspector of Police, Economic Offences Wing -
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Unit III,Crime Branch, CID, Compound of the
Office of Commissioner of Police, Brihan Mumbai,
Annex Building III, 2nd Floor, Near Phule Market,
Mumbai 400 001.
2. Yogesh J. Mehra, Indian Inhabitant,
residing at 101, Hare Krishna Residency
Society, J.P.V.D. 'scheme, North South
Road No. 8, Viole Parle (W), Mumbai 400 049
and having his office at Plot No. 9A, Veera
Desai Road,Andheri (West), Mumbai 400 053.
3. The Senior Inspector of Police, Oshiwara
Police Station, Mumbai. ..Respondents
...................
Mr. Mahesh Jethmalani, Sr. Counsel a/w Ms. Gunjan a/w Mr. Vivek Vashi
a/w Ms. Sharma a/w Mr. Krishnendu Satya i/by M/s.Bharucha & Partners
for the petitioner no. 1.
Mr. Satish Maneshinde a/w Mr. Jejeebhoy a/w Mr.Vivek Vashi a/w Ms.
Sharma a/w Mr.Krishnendu Satya i/by M/s. Bharucha & Partners for
petitioner nos. 2 and 3.
Mr. Abad Ponda a/w Mr. Vivek Vashi a/w Ms. Sharma a/w Mr. Krishnendu
Satya i/by M/s. Bharucha & Partners for petitioner nos. 4 to 9.
Mr. Samsher Garud a/w Joy Pereira and Ms. Juhi Vaila i/by M/s. Jaykar &
Partners for respondent no. 2.
Mr. J.P.Yagnik, APP for the State.
......................
CORAM : RANJIT MORE &
V. L. ACHLIYA, JJ.
RESERVED ON : FEBRUARY 16, 2016.
PRONOUNCED ON : APRIL 5, 2016.
ORAL JUDGMENT (Per V.L. Achliya,J.) :
Rule. Rule made returnable forthwith. By consent of the
parties, petition is heard finally at the stage of admission itself.
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2. Petitioners herein have filed this petition under Article 226
and 227 of the Constitution of India and section 482 of the Code of
Criminal Procedure. They have challenged the order dated 18 th July,
2008 passed under section 156(3) of the Code of Criminal Procedure,
1973 (for short "Code") by Metropolitan Magistrate, 22 nd Court, Andheri
and consequential FIR registered bearing MECR No. 2/2008 dated
22.7.2008 on various grounds as set out in the petition.
3.
At the time of taking up petition for hearing, the learned
counsel for both the side agreed to restrict their arguments on the
limited issue as to whether in the absence of a complaint to the police
u/s 154 of Code, a Complaint can be directly made before the Magistrate
under section 156(3) of the Code.
4. In view of limited issue posed for our consideration, it is not
necessary to discuss in detail the facts leading to filing of the complaint
and other challenges raised in the petition. We confine ourselves to
deal with the limited issue as to whether the impugned order dated
18.07.2008 passed under section 156(3) of the Code by the Magistrate,
without the complaint being made to police as contemplated under
section 154 of Code and consequential registration of FIR on the basis of
said order is sustainable in law. At the outset, the fact is not in dispute
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that respondent no. 2/Complainant had directly approached the
Magistrate under section 156(3) of the Code vide complaint dated
18/07/2008. There is no controversy as to the fact that before
approaching the Magistrate under section 156(3) of the Code,
respondent no. 2 has not filed any complaint as contemplated under
section 154 of the Code. The impugned order dated 18/07/2008 passed
under section 156(3) of the Code passed by the Magistrate reads as
under :
"(1) Complaint be sent for investigation to the concern police
station, as per the provision of section 156(3) of the
Criminal Procedure.
(2) The concern police officer is hereby direction to investigate
the complaint s per provisions of section 156(3) of the
Criminal Procedure Code and submit his report on or
before 24-10-08."
Sd/-
18.07.2008
5. We have heard the learned counsel for both the sides. The
learned counsel for the petitioners has submitted that the legal issue
falls for consideration of this Court is no more res integra as the Full
Bench of this Court in the case of Panchabhai Popatbhai Butani and
Ors. Vs. State of Maharashtra,1 has specifically dealt the said issue
and held in uncertain terms that except the cases where the police
1 2010 Vol. 112(1) Bom.L.R. 427
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failed to act instantly and the facts of the case show that there is
possibility of evidence of commission of offence being destroyed and/or
tampered with, in all other circumstances, the person must invoke
provisions of section 154 of the Code before taking recourse to the
powers of the Magistrate under section 156(3) of the Code. He submitted
that the complaint discloses no such exceptional circumstances to justify
the act of the complainant to directly approach the Magistrate under
section 156(3) of the Code. So also the order passed by the Magistrate
discloses no such exceptional circumstances which has prompted the
learned Magistrate to pass the impugned order without the
Complainant taken recourse to section 154(1) and 154(3) of the Code. It
is further submitted that in the case of Priyanka Srivastava and
another Vs. State of U.P. and Others2 the Apex Court has considered
the implications of the filing of complaint under section 156(3) of the
Code without prior applications under section 154(1) and 154(3) of the
Code & held that while filing the petition under section 156(3) of the
Code, a person must spelt out in clear terms of prior applications under
section 154(1) and 154(3) of the Code. In the background of the
undisputed facts that before filing the complaint under section 156(3) of
the Code, respondent no. 2 has not filed any complaint under section
154(1) nor approached superior authority as provided under section
154(3) of the Code, learned counsel submitted that the impugned order
2 2015 6 SCC 257
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passed is per se illegal, without jurisdiction and same is liable to be
quashed. It is further submitted that in consequences of such order
passed without jurisdiction and in gross violation of law, all
consequential proceedings including registration of FIR deserves to be
quashed.
6. Per contra, the learned counsel appearing for respondent no.
2, though not disputed the factual aspect that the complaint under
section 156(3) of the Code was filed without taking recourse to section
154(1) and 154(3) of the Code, submitted that in the facts and
circumstances of the case, the order can not said to be illegal and void
ab initio. He has submitted that at the most the order can be termed as
irregular and outcome of procedural irregularity committed on the part
of the Magistrate. He has further submitted that as impugned order
dated 18/07/2008 is already implemented and FIR has been registered,
this Court can only consider quashing of the FIR. He has submitted that
the only ground for quashing of FIR would be to see the contents of the
FIR and the FIR can be quashed if the contents of the FIR are taken on its
face value discloses no commission of cognizable offence. He has
further submitted that, non-compliance of procedure prescribed under
section 154(1) and 154(3) of the Code before making an application to
the concerned Magistrate for directions u/s 156(3) at the most can be
treated as irregularity. He has further submitted that in the light of the
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decision of the Full Bench of High Court in the case of Panchabhai
Popatbhai Butani (supra), Writ Petition No. 270 of 2009 involving
identical facts came to be disposed of by the Division Bench of this Court
vide order dt. 6th September, 2010. While deciding said petition, the
Court has refused to quash the FIR after going through the contents of
the FIR. It is further contended that the FIR cannot be quashed on
technical grounds. It is further contended that the provisions of section
154(1) and 154(3) are not mandatory in nature. In this context, the
learned counsel has referred and relied upon the decision of the Apex
Court in the case of State Versus N.S. Gnaneswaran3. He has further
argued that the decision in the case of Priyanka Srivasatava (supra) have
no bearing in deciding the present case as facts of the case are
altogether different. Lastly the learned counsel has contended that at
the most passing of impugned order under section 156(3) without
approaching police for registration of offence under section 154(1) or
154(3), can be termed as an error or omission or irregularity and as
provided u/s 465 of Code, such order calls for no interference unless a
case of failure of justice has been made out.
7. We have thoroughly considered the submissions advanced
by the respective counsel for the parties. The fact is not in dispute that
respondent no.2 has directly approached the Magistrate under section
156(3) of the Code, seeking direction to investigate the complaint. The
3 (2013) 3 Supreme Court Cases 594.
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issue raised in the petition as to whether in absence of a complaint to
the police, a complaint can be made directly before the Magistrate was
referred for consideration of the Full Bench of this Court in the case of
Panchbhai Bootani (supra). While deciding said reference, the Full
Bench of this Court has examined the entire scheme under the Code of
Criminal Procedure with reference to the question referred for
consideration of the Full Bench. On due examination of the scheme and
precedents of law, the Full Bench has recorded its answer to questions
of law referred for its consideration as under :
"Question No. (i)
Whether in absence of a complaint to the police, a complaint can
be made directly before a Magistrate?
Answer Normally a person should invoke the provisions of Section 154
of the Code before he takes recourse to the power of the Magistrate
competent to take cognizance under Section 190 of the Code, under
Section 156(3). At least an intimation to the police of commission of a
cognizable offence under Section 154(1) would be a condition
precedent for invocation of powers of the Magistrate under Section
156(3) of the Code. We would hasten to add here that this dictum of
law is not free from exception. There can be cases where non-
compliance to the provisions of Section 154(3) would not divest the
Magistrate of his jurisdiction in terms of Section 156(3). There could
be cases where the police fail to act instantly and the facts of the case
show that there is possibility of the evidence of commission of the
offence being destroyed and/or tampered with or an applicant could
approach the Magistrate underSection 156(3) of the Code directly by
way of an exception as the Legislature has vested wide discretion in the
Magistrate.
8. Thus the Full Bench of this Court in the case of Panchabhai
(supra) has held in uncertain terms that normally a person should
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invoke provisions of section 154 before he takes recourse to the powers
of the Magistrate competent to take cognizance under section 190 of the
Code, under section 156(3). It is further held that at least intimation to
the Police of commission of cognizable offence under section 154(1)
would be a condition precedent for invocation of powers of the
Magistrate under section 156(3) of the Code. It is further observed that
in exceptional cases, wherein the police failed to act instantly and the
facts of the case show that there is possibility of evidence of commission
of the offence being destroyed and/or tampered with, discretion lies
with the Magistrate to entertain the Complaint under section 156(3) of
the Code of Criminal Procedure, without prior recourse to Section 154 of
Code by the complainant. Therefore, the question which falls for our
consideration is whether any such exceptional circumstances spelt out in
the Complaint, so as to justify the act of complainant to directly invoke
the jurisdiction of the Magistrate under section 156(3) of the Code as
well as exercise of discretion by Magistrate. In order to ascertain this
fact, we have perused the complaint. The complaint filed by respondent
no. 2, nowhere mentions such exceptional circumstances to entertain
the complaint under section 156(3) of the Code without prior recourse to
section 154(1) or 154(3) of the Code. It is pertinent to note that on
18/07/2008, respondent no. 2 has filed a complaint seeking direction to
the Senior Inspector of Police Station, Oshivara to register and
investigate the complaint. On the same day, the learned Magistrate has
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passed an order to refer the complaint for investigation to the
concerned police station. So also in the complaint, it is nowhere
mentioned that prior to approaching Magistrate intimation was given to
the police of commission of cognizable offence. The order passed
nowhere reflects any extreme urgency in the matter or any exceptional
circumstances which leads to exercise of discretion by Magistrate and
passing of such order under section 156(3) of the Code. From the face of
the order, it appears that the learned Magistrate has acted in a very
casual manner. The order has been passed mechanically and that too
without application of mind. Therefore, on due examination of the
impugned order in the light of the decision of Full Bench of this Court in
the case of Panchabhai Vs. State (supra), we are of the considered
opinion that, the impugned order is not sustainable in law.
9. It is apparent from the face of the record that the petitioner
no.1 is a Company incorporated under the laws of Germany. Petitioner
no. 2 is described as Chairman and Managing Director of petitioner no.1
company. Petitioner no. 3 is the Managing Director of Petitioner no.1
company. The petitioner no.4 is the General Counsel-Legal of the first
Petitioner. The petitioner no.5 is the Chief Risk Officer of the first
Petitioner. The petitioner nos. 6 and 7 are the persons holding the posts
of Assistants to the Management of petitioner no.1. Petitioner no.8 is
the Chartered Accountant and Petitioner no. 9 is the Practicing lawyer
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practicing in Germany and legal advisor of petitioner no. 1. From the
cause title of the Complaint itself, it is clear that the complaint was filed
against the German company and the accused nos. 2 to 9 are the
German nationals. The complaint discloses that in the year 1994, the
complainant and the accused no.1 company entered into an agreement
to provide technical know-how. The dispute referred in the Complaint
appears to be cropped up between two companies some time in the
year 2006 on certain issues to sign the agreement, which leads to filing
of number of proceedings including the criminal complaint. Since we
are not dealing with the merits of matter, we refrain ourselves from
making any further comments as to whether the dispute is purely Civil in
nature or any element of criminality is involved in the matter. However,
the fact remains that the complaint discloses no exceptional
circumstances to bypass the provisions of section 154 of the Code and to
directly invoke the provisions of section 156(3) of the Code and to
register offence against the petitioners/accused. In the absence of any
exceptional circumstances to directly invoke jurisdiction of Magistrate
u/s 156(3) of the Code, the order passed by the learned Magistrate to
invoke jurisdiction under section 156(3) of the Code is bad in law. The
impugned order passed by the Magistrate cannot be termed as
procedural irregularity. The implications of the order passed under
section 156(3) are far reaching. The order in question has resulted into
registration of FIR against the petitioners who are the foreign nationals.
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The facts stated in the petition itself demonstrate the serious
consequences which followed the registration of FIR against the
petitioner. It is therefore a case of failure of justice being occasioned on
account of such order passed by Magistrate. The provisions of Section
465 have no applicability in the matter. Since the order passed by the
learned Magistrate is contrary to law, all the consequential proceedings
pursuant to the order dated 18 th July, 2008 are liable to be held illegal
and deserves to be quashed and set aside.
10.
We are not inclined to accept the contention of the learned
counsel for the respondent no.2 that the provision of Section 154(1) of
the Code is directory in nature. The decision in the case of State Vs. S.
Gnashwaran have no bearing upon the facts of the case in hand as it
relates to the interpretation of section 154(2) of the Code, i.e.
implication of not providing copy of F.I.R., which is held to be directory.
The interpretation of Section 154(1) of the Code was not the subject
matter for consideration in the said case. So also the decision in WP No.
270 of 2009 has no bearing upon the facts of the present case as the
decision in said petition was taken purely on the basis of facts of the
said case. We are bound by the decision of the Full Bench in the case of
Panchabhai Butani (supra).
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11. In the case of Priyanka Srivastava Vs. State of U.P. (Supra)
the Apex Court has observed that the remedy available under section
156(3) of the Code is not of a routine nature and exercise of powers
thereunder requires application of judicial mind. It is further observed
that the powers under section 156(3) can not be invoked by the litigant
on his own whim to harass others and the same can be invoked only by
a principled and really aggrieved citizen approached with clean hands. It
is further held that the order under section 156(3) can be passed by the
Magistrate, where there is prior applications under section 154(1) and
154(3) while filing the petition under section 156(3). The Apex Court has
categorically observed that both the aspect of filing of applications
under sections 154(1) and 154(3) prior to filing of the petition under
section 156(3) of the Code should be clearly spelt out in the application
and necessary documents to that effect shall be filed. In Para 29, 30
and 31 of the judgment, the Apex Court has observed as under :
"We have already indicated that there has to be prior applications
Under Section 154(1) and 154(3) while filing a petition Under Section
156(3). Both the aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed. The warrant for
giving a direction that an the application Under Section 156(3) be
supported by an affidavit so that the person making the application
should be conscious and also endeavour to see that no false affidavit is
made. It is because once an affidavit is found to be false, he will be
liable for prosecution in accordance with law. This will deter him to
casually invoke the authority of the Magistrate Under Section 156(3).
That apart, we have already stated that the veracity of the same can
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also be verified by the learned Magistrate, regard being had to the
nature of allegations of the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere, matrimonial dispute/family
disputes, commercial offences, medical negligence cases, corruption
cases and the cases where there is abnormal delay/laches in initiating
criminal prosecution, as are illustrated in Lalita Kumari are being
filed. That apart, the learned Magistrate would also be aware of the
delay in lodging of the FIR."
12. Thus on considering the submissions advanced in the light of
the undisputed fact that respondent no.2 had approached the
Magistrate under section 156(3) of the Code without prior application
under section 154(1) and 154(3) of the Code and the impugned order
under section 156(3) has been passed against the mandate of law, we
are of considered opinion that in the light of Full Bench decision of this
Court in the case of Panchabhai Butani (supra) and the decision of the
Apex Court in the case of Priyanka Srivastava (supra) the impugned
order passed u/s 156(3) of the Code and consequential registration of
FIR are liable to be quashed and set aside. We are therefore, inclined to
allow the petition in terms of prayer clauses (a) and (b). Accordingly, the
petition is allowed in terms of prayer clauses (a) and (b). Rule is made
absolute in above terms.
[ V. L. ACHLIYA, J. ] [ RANJIT MORE, J. ]
Nilegaonkar
