Kirandeep Electronics and Another vs Videocon Industries Ltd.

Muzaffar Hussain Attar, J.—A criminal complaint u/s 415, 417, 418 and 420 RPC came to be filed by the Respondent against the

Petitioners which is pending on the files of learned Forest Judicial Magistrate, Srinagar. On presentation of the complaint the learned Magistrate

took cognizance of offences and issued process against the Petitioners vide its order dated 4th of August, 2009, being prima facie satisfied that the

Petitioners have committed offences as alleged in the complaint.

The Petitioners feeling aggrieved of the said orders and even the complaint have filed this petition seeking quashment thereof.

Heard learned Counsel for the parties. Considered the matter.

Learned Counsel for the Petitioners submitted that perusal of the complaint does not disclose commission of any offence. Learned Counsel

further submitted that this is a case of civil nature and that the complaint has been filed by an unauthorized person, in as much as, the complaint has

been filed through attorney and the power of attorney, as per the statement of the learned Counsel, has been executed outside Jammu and Kashmir

and unless same would have been attested by the competent authority the complaint on such power of attorney should not have been entertained

by the learned Magistrate. Learned Counsel referred to the complaint and submitted that the complaint does not show as to where the alleged

offences have been committed. Learned Counsel further submitted that the Petitioners belong to Jaipur Rajasthan and the Respondent-complaint

hails from Aurangabad Maharastra. Learned Counsel accordingly submitted that the learned trial Magistrate was lacking territorial jurisdiction to

try and hear the complaint.

Learned Counsel for the Respondents submitted that in view of the law laid down by the Hon'ble Supreme Court in case Trisuns Chemical

Industry Vs. Rajesh Agarwal and others, , the question, as to whether the learned Magistrate is having jurisdiction to inquire into and try the

offence, would arise only at the post cognizance stage and not earlier. Learned Counsel also referred to para 9 of the complaint to show that it has

been specifically pleaded that intention of the accused person from the very inception was to deceive and cheat the complainant. Learned Counsel,

accordingly, submitted that the complaint does, prima facie, disclose commission of offences alleged therein. Learned Counsel referred to and

relied upon the judgment supra and judgment passed by this Court in Ashutosh Agarwal v. Escorts Finance Ltd. to canvass the point that the

learned trial Magistrate should take the decision as to whether he is possessed of the jurisdiction to inquire into and try the offence alleged in the

complaint.

Learned Counsel for the Petitioner in response thereto referred and relied upon judgment of this Court passed in Shivanshiv T.V Centre v.

Videocon Industries Ltd. and submitted that though the like objections were taken but this Court quashed the complaint on the ground that the

learned trial Magistrate was lacking the jurisdiction to try the same.

Section 190 of the Code of Criminal Procedure confers power on the learned Magistrate to take the cognizance of the offence if he is satisfied

that the allegations/averments made in the complaint do prima facie disclose the commission of offence. It is not in all circumstances necessary that

the complaint should contain all the particulars about the ingredients of any offence, which is alleged to have been committed by the accused. If

material particulars relevant for taking cognizance are disclosed in the complaint, the learned Magistrate can take cognizance of the offence. The

ingredients of the offence are to be proved during the trial of the case.

The Hon'ble Supreme Court in case Rajesh Bajaj Vs. State NCT of Delhi and Others, has held that, it is not necessary that a complainant

should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging, nor is it necessary that the complainant

should state in so many words that the intention of the accused was dishonest or fraudulent. Para 9 of the judgment is reproduced as under:

It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is

it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the

definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the

complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash

criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an

FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are

absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (AIR 1992 SCW 237) (supra) this Court laid down the

premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder (para

109 of AIR):

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

Section 177 of Code of Criminal Procedure refers to the jurisdiction of the Magistrate to try a case. After the cognizance is taken the Magistrate

is under statutory obligation to apply his judicial mind to the facts of the case to find out as to whether he has jurisdiction to try the complaint. As in

a case where the learned Magistrate after taking cognizance of the offences without ascertaining whether he has jurisdiction to try the complaint

issues process against a person, the accused person is required to appear before the Court and in order to ensure that the trial proceeds

unhindered the accused is ordered to execute bail bonds and surety bonds. By this act of the learned Magistrate the liberty of a citizen is abridged,

which right of personal liberty is guaranteed by Article 21 of the Constitution of India. Learned Magistrate is thus duty bound to apply his mind to

the facts of the complaint after taking cognizance of the offence to find out as to whether he has jurisdiction to try the complaint. This stage can

accrue even before issuance of process to the accused. Normally the learned Magistrate should consider this aspect of the matter before issuance

of process to the accused as in some cases an accused without any legal and just cause may be dragged to the Court from a different State as in

the case in hand.

Learned Counsel for the parties at this stage made a fair submission that orders impugned in this petition require to be quashed leaving the

learned Magistrate free to take a decision about his jurisdiction to try the case.

In view of discussion made herein above, the impugned order constitutes abuse of process of Court and deserve to be quashed in exercise of

the inherent powers . vested in this Court.

This petition is, accordingly, allowed to the extent that the order issuing process to the Petitioners is quashed. The learned Magistrate to

reconsider the case to find out as to whether he has jurisdiction to try the case and to pass appropriate orders in accordance with law.

Disposed of.

Parties to appear before the learned Magistrate on 30th of March, 2010.