Dilip Singh Canwar vs State of Punjab

S.C. Mital, J.

The facts giving rise to this petition under section 482 read with section 186 of the Code of Criminal Procedure filed by one of the accused, namely, Dilip Singh are as follow :

Messrs Modern Syntex India (Limited), Alwar had been sending goods to Swarnjit Jain, a businessman of Ludhiana, through Yadav Transport Company/Yadav Transport Service, Nasirahad, District Ajmer, Rajasthan. The said Transport Company has its branch office in Ludhiana, the Manager of which was Dalip Singh, the petitioner. The said Swarnjit Jain either as partner or proprietor, is connected with three sister concerns : (i) Messrs Manak Trading Company, Ludhiana, (ii) Messrs Swarn Woollen Mills, Ludhiana and (iii) Messrs Laadlers Knitwear.

It may be mentioned that on l8th May, 1981 at the instance of Yadav Transport Service FIR N. 153 was registered at Police Station Division No. 3 Ludhiana against Swarnjit Jain and Dalip Singh under sections 420 and 408, Indian Penal Code, vide Annexure P. 9. Upon the completion of the investigation, it was found that the said two accused had committed offences in respect of goods worth Rs. 29,00000/. Accordingly Challan against them under sections 408 and 420 IPC was filed in the Court of the Judicial Magistrate Ist Class Ludhiana.

Adverting now to the Alwar case, it is noteworthy that on 10th May, 1981 the Modem Syntex India ''(Limited), Alwar, through the General Manager, got FIR No. 1 15 registered at Sadar Police Station, Alwar on 10th May, 1981. Upon the completion of the investigation report (Annexure R. 2/8) under section 173, Criminal Procedure Code, was submitted in the court of Judicial Magistrate, Alwar. A perusal thereof shows that Swarnjit Jain, Manak Chand Jain and Raj Bhushan Jain partners of Messrs Manak Trading Company, Ludhiana, M/s, Swarn Woollen Mills, Ludhiana aid their employees, namely, Dharam Vir Jain, Kishan Lal. Hari Narain and Dalip Singh, Manager of the Ludhiana branch of M/s. Yadav Transport Service committed offences punishable under sections 408, 409, 420, 4 07, 468, 471 read with section 120B, IPC with respect to the goods of the value of Its. 38,61,758.00. The report Annexure Rs. 2/8, running into 23 pages, contains details as to the modus operandi of the accused person. It makes reference to the large sums involved in the transactions and numerous documents, including forged ones, substantiating the conclusion of the investigation With the reports are annexed documents Annexures Rs. 2/9 to R. 2/12 further highlighting the commission of the offences.

The second report Annexure (R. 2/1) 1) under section 173. Cr.PC was filed in the Court of the Chief Judicial Magistrate, Alwar accusing Swarnjit Jain and Dalip Singh off committing offences punishable wider sections 408 and 420, IPC. This case relates to 73 bales of goods worth Rs. 12 lacs belonging to the Modern Syntax India (Limited), Alwar.

When proceedings, in consequence of the institution of the reports Annexures R. 2/9 and R. 2/1 commenced Jit the abovesaid Alwar Court, Dalip Singh, accused by filing this petition, got them stayed. In order to appreciate the respective contentions of the earned counsel for the parties, at is necessary to quote here the provisions of section 186, Cr.P.C. which are as under :

"S. 186. Where two or more Courts have taken cognizance or the same offence and a question arises as to which of them ought to in inquire into or try that offence, the question shall be decided.

(a) the Courts are subordinate to the same High Court, by that High Court

(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceeding were first commenced, and, thereupon all other proceedings in respect of that offence shall be discontinued."

Admittedly, proceedings in the Ludhiana court commenced first, but a plain reading of clause (b) of section 186 leaves no room for doubt that this fact has relevancy only to the jurisdiction of this High Court to decide as to which of the two courts shalltry the offence. It goes to the credit of the learned counsel for the petitioner Mr. D. V. Sehgal, Sr. Advocate, that he did not construe clause (b) to mean that because proceedings in Ludhiana Court first commenced, therefore, this petition be allowed on this score.

The contention at Mr. D. V. Sehgal that the Alwar Court has no jurisdiction to try the cases, has not impressed me at all. It need hardly be said that section 286 envisages its applicability to cases where two or more Courts of competent jurisdiction have taken cognizance of the same offence. As such once it is held that the Alwar Court has no jurisdiction, the very foundation of this petition seeking relief with the aid of section 186 will fall to the ground. It may a, well he mentioned that Mr. D. V. Sehgal was unable to convince me that the jurisdiction of Alwar Court to try the cases pending there can be challenged here.

The learned counsel for the respondent Mr. A. N. Mulla, Sr. Advocate, vehemently urged that section 186 of the Code of Criminal Procedure was not at all applicable inasmuch as the two Courts (1) in Ludhiana and (2) in Alwar have not taken cognizance of the `same offence In the Ludhiana case, the complainant is the Yadav Transport Service, to have been committed by them are punishable under sections 408, 409, 420, 567, 468 471 read With section 120 (B), Indian Penal Code. Just because the two accused, namely, Swaranjit Jain and Dalip Singh are also the accused persons in the Ludhiana case is of no consequence inasmuch as in the Ludhiana case they are said to have committed offences, the victim of which is the Yadav Transport Service, in other words,l not M/s Modern Syntax (India), Limited. Similarly, the mere fact that the goods worth twentynine lac rupees relating to the Ludhiana case also form raft of goods lock worth over thirtyeight lac rupees in the Alwar case. is of no consequence. For the foregoing reasons, I have no hesitation in finding that the criminal proceedings in question in the Ludhiana Court mid the Alwar Court do not relate to the same offence. Hence the essential ingredient of section 186 on the Code of Criminal Procedure remaining unproved.

It further deserves mention that the second case vide report Annexure R. 2 A under section 173 of the Code of Criminal Procedure instituted in the Alwar Court against Swarjit Jain and Dalip Singh for commission of offences under sections 408 and 420, Indian Penal Code, relates to 73 bales of goods worth twelve lac rupees belonging to Modern Syntax (India) Limited, Imar. Admittedly, neither the property invoked in this case is the subjectmatter of Ludhiana case, nor is the complainant the same. Besides, the discussion in the proceeding paragraph further lends weight to the argument of Mr. A. N. Mulla that it cannot be said by any stretch of reasoning that the two accused Swaranjit Jain and Dalip Singh will be tried of the same offence by the Ludhiana Court and the Alwar Court.

Since a passing reference was made to the two judgments of this Court by the learned counsel for the petitioner, a mention may be made thereof Judgment dated 15th July, 1981 (Annexure P. 7) allowed Cr. M. No. 2932 M of 1981 filed by Swarnjit Jain and be was granted the relief under section 438 or the Code of Criminal Procedure. Before that. Swarnjit Jain had been released on anticipatory bail by the Rajasthan High Court in the Alwar case. which was under investigation. In, his judgment Annexure P. 7, K.S. Tiwana J, observed :

"The counsel for the parties are agreed that the subject matter of the case is "the same in both the cases and the accused is also the same."

It may he recalled that the cases against Swarnjit Jain ware registered in Ludhiana and alwar in May 1981. Both the cases were at a very early stage of investigation when the judgment under consideration was passed. At that stage, the subjectmatter of the two cases appeared to be similar. But, now after conclusion of the investigation of the cases, the matter in issue is the interpretation of the expression "same offence" occurring in section 196 of Civil Code of Criminal Procedure. Judgment Annexure P. 7 is, therefore, of no avail to Swarnjit Jain.

Coming now to the second judgment dated 4th January, 1982 (Annexure P. 8) in Cr. R. No. 5M of 1981 flied by Swarnjit Jain, the salient facts are that the petition under Article 227 of the Constitution was for quashing the FIR lodged with the Ludhiana Police on the ground that the same case was being investigated by the Alwar police. In the course of the argument, when reference was made to the previous precedent (Annexure P. 7), M. M. Punchhi, J. observed :

"While disposing of that petition. counsel for the parties had agreed before the learned Single Judge that the subjectmatter of the case was the same in both the cases and the accused was also the same."

I have already said that any concession made by the learned counsel for the parties in those proceedings has absolute no bearing in deciding the present petition under section 186 of the Code of Criminal Procedure.

In view of the discussion above, I do not find any merit in this petition. The same is, therefore, dismissed.