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Judgment
RajasekharMantha, J
The instant Revisional application has been fixed pursuant to directions passed by the Hon'ble Supreme Court in the case of Darks Security Consultant Pvt. Ltd. vs. Fabworth Promoters Pvt. Ltd. reported in SLP Criminal Appeal No. 6433 of 2019. The direction was passed on 29th July, 2019.
This court notes with anguish that none of the learned counsel of either side have brought to the notice of this court the aforesaid direction until the department placed the same before this Court on the 10th of September2019.
The direction of the Hon'ble Supreme Court was to decide as to whether the order passed by the Magistrate dated 29th March 2019 directing police investigation , under an application under section 156(3) of the CrPC, is legally sustainable in the facts of the case.
The learned Counsel for the parties made submissions both on the procedure adopted by the Magistrate as also on the merits of the Complaint filed by the Opposite party.
The facts indicate that one Bipin Vohra and his associates were in control and management of the Revisionist Company from 2010 to 2013. During the management and control of the said Bipin Vohra and two of his associates, the Revisionist borrowed diverse sums from various Nationalised Banks and private Banks and dues in excess of hundreds of crores became outstanding and pending.
The Banks filed complaints before the Central Bureau of Investigation (hereinafter referred to as CBI) that launched proceedings against the said Bipin Vohra and his associates as also the Revisionist and his present controllers.
In aid of such proceedings, the Enforcement Directorate, under the Prevention of Money Laundering Act 2002, has issued orders of attachment, of 3 Service Apartments in the name of the Revisionist. This court is surprised to note that the present promoters of the Revisionist are so obedient of the Enforcement Directorate that they acted upon attachment orders,received over telephone, in March, 2019. The complaint was filed by the Opposite Party buyer of 3 Service Apartments from the Revisionists for failure to convey and deliver the same. The said orderof attachment by the EDis, however, stated to have been confirmed and passed in writing in September, 2019. A Supplementary affidavit has been filed bringing on record such order.
It is further argued on merits that the opposite party is primarily under the control and management and acts as per the dictates of one Ranbir Singh, who happens to be the son-in-law of the said Bipin Vohra.
This court's mind is not free from doubt that the complainant as also the instant proceedings may have some elements of collusion between the parties and the Court below and this Court may have been mislead.
Be that as it may, let us first address to the procedure and manner adopted by the learned Magistrate in issuing the directions for investigation to the Police. Ex facie it appears to this Court that the impugned order dated 29.03.2019 has been signed after filling up of a "printed form". The name of the "Karaya" Police Station has been filled up in handwriting and the learned Chief Judicial Magistrate, in-Charge, Alipore, South 24 Parganas who put his signature thereon.
The Revisionist would first rely upon Rule 183 of the "Criminal Rules and Orders" framed by this court being empowered under Article 227 of Constitution of India.
"R. 183. Orders requiring the exercise of Judicial discretion and the final order shall be recorded by the Magistrate in his own hand or typed by him, others may be recorded under this direction by the Bench Clerk."
It is clear fromthe aforesaid Rules framed by the High Court under Article 227 of the Constitution of India are mandatory and have been ordered to be followed strictly by a Coordinate Bench of this court in the case of Sharmistha Chowdhury Vs. State of West Bengal and ors. Dated 27.07.2017 passed in CRR 602/2017. The relevant portion of the order passed by the Coordinate Bench is set out hereinbelow:
"Accordingly, I deem it necessary to pass the following directions in exercise my powers of superintendence for future guidance of the criminal courts:-
(a) Judges/Magistrates shall record orders strictly in terms of Rule 183 of the Criminal Rules and Orders (Sub-ordinate Court Rules), 1985.
(b) Alternatively, in view of the technological advancement and the availability of personal computers/laptops to the judicial personnel, they may also transcribe their orders on the computers and take printout thereof and upon affixation of their signature thereto, the said hardcopy shall be treated as a valid transcription of the order passed by the said court.
(c) Under no circumstances, any judicial officer shall take assistance of any external agency particularly police officers in the matter of recording and/or transcribing orders of the Court.
(d) Any breach of such duty shall invite departmental proceeding so far as the judicial personnel is concerned.
It is abundantly made clear from the above that not only the learned Magistrate is required to type out the order in question himself or reduce the same in his own in writing but is also required to enter briefly into the facts as pleaded in the complaint. The above observations are aimed at ensuring that there is evidence of application of mind by the learned Magistrate.
The impugned order passed by the learned Magistrate which is admittedly on printed form does not demonstrate application of mind.
This court, therefore, would unhesitatingly hold that the procedure adopted by the learned Magistrate in passing of the impugned order, is ex facie violative of Rule 183 of the Criminal Rules which has been held to be mandatory by this court.
However, in the facts of the case would the order directing investigation by the police be held illegal? The answer to this would be that a Revisional court can definitely examine the complaint and if it appears to the Revisional court that there is some material that requires investigation, the defect in the order of the learned Magistrate may be cured.
This court finds that there is some material available on record to indicate that there may have been offences committed under Section 406/420 of the Indian Penal Code and the other Sections as pleaded in the complaint.
This is not a conclusive view and the above mentioned observations are merely for the purpose of the instant revisional application.
The second limb of the Revisionist is in the context of the judgment of the Hon'ble Supreme Court in the case of Priyanka Srivastava vs. State of Uttar Pradesh reported in (2015) 6 SCC 287 wherein at Paragraph 31, the Hon'ble Supreme Court has held as follows:
"Paragraph 31. We have already indicated that there has to be prior applications under Sections 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 application under Section 156(3) be supported by an affidavit is 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 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 F.I.R."
The Revisionist would further argue that mere mention of filing of a complaint with the concerned Police Station and subsequent complaint before the Superintendent of Police for failure on the part of the concerned Police Station to take steps on the complaint, do not comply with the mandate of the Hon'ble Supreme Court as laid down in the Priyanka Srivastava case (supra).
The Revisionist further submits that the actual document, a copy of such complaint to the concerned Police Station as also subsequent request to the Superintendent of Police must be physically found annexed with the complaint.
The Revisionist delivered by a Coordinate Bench of this court in the case of Mukul Roy vs. State of W.B. reported in 2019 CRI. L. J. 245 wherein at paragraph 59, the said Coordinate Bench while referring to the Priyanka Srivastava case (supra), set forth the requirements and guidelines to be followed by the learned Judicial Magistrate concerned while invoking or recording statement under Section 164 of the Code of Criminal Procedure.
At Guideline No. 3, the Coordinate Bench has taken the Priyanka Srivastava case (supra) a step further requiring and making it mandatory to annex a copy of the complaint and the request to the Superintendent of Police to a complaint under Section 156(3).
A plain reading of the Priyanka Srivastava decision (Supra) would indicate that the Hon'ble Supreme Court had laid down that the complaint must demonstrate suitable steps that have been initiated by the complainant before the Police Station concerned and the Superintendent of Police prior to jumping before the learned Magistrate under Section 153 of the Code of Criminal Procedure.
The requirement of approaching the local police station and the approaching Superintendent of Police is what the essence of the aforesaid paragraph but a failure on the part of the complainant to annex the said document would not be fatal to the complaint.
One may refer tothe dicta laid down in the earlier paragraph in the Priyanka Shrivastava Case (Supra) of the requirement of the affidavit to be annexed to a complaint. The Complaint has to be and as in this case to be verified by affidavit making the deponent accountable and he can be hauled up for making any false statement on affidavit.
The complainant can always produce before the learned Magistrate or a higher forum, the actual document evidencing the complaint filed and the request made to the Superintendent of Police. On this score, therefore this court is of the view that failure to annexa complaint with the local Police Station and a copy of the request to the Superintendent of Police would not be fatal to a complaint.
Mr. Sudipta Moitra, learned counsel for the opposite party submitted the proceeding under 482 is premature since only in investigation that has been order by the Magistrate. He relied upon Paragraph 27 of the decision of the Hon'ble Supreme Court in the case of HDFC Securities Ltd. vs. State of Maharashtra reported in (2017) 1 SCC 640. The said decision is indeed applicable to the facts of the case as the investigation by the police is still pending.
Mr. Moitra next argued that the averments in the complaint if read as a whole would definitely indicate and make out a case for investigation of the offences alleged against the Revisionist. He relied upon the decision of the Hon'ble Supreme Court in the case of Rajesh Bajaj Vs. State of NCT Delhi reported in (1999) 3 SCC 259. As already stated hereinabove there is prima facie case made out for investigation in the complaint and the matter needs to be investigated.
Going back to the merits of the case, this court finds that the it started with an original proceeding instituted by the CBI at the instance of host of Public and Private Sector Banks who claimed to have been cheated by the said Bipin Vohra and his associates while in Control of Revisionist. The said proceedings are pending before the learned Special CBI Judge, Alipore, South 24 Parganas. It is in aid of such proceedings that the Enforcement Directorate had initiated proceedings under the Prevention of Money Laundering Act, 2002 and has ordered thereunder that three service Apartments which the opposite party claims to have paid for and not been put into physical possession thereof, have been attached.
The Revisionist would argue that it is only because of the order passed by the Enforcement Directorate, first indicated to it over telephone and in March, 2019 and subsequently confirmed in an order passed in writing in September, 2019 that two of the three Apartments could not be conveyed and delivered to the opposite party, Revisionist.
The Revisionist has argued before this court that they are willing to abide by the order including delivery of physical possession and conveyance of the said two Apartments, if ordered by the court.
This court sees collusion between the Revisionist and the opposite party as the latter is now under the control and management of one Ranbir Singh, who happens to be the son-in-law of the said Bipin Vohra, and others the principal accused in the proceedings filed by the CBI on 29th August 2014.
This court is of the view that any decision taken by the learned Magistrate or any learned District & Sessions Judge concerned in any trial that may result from the investigation ordered by the learned Magistrate would have a vital bearing on the proceedings of the CBI.
This court is, therefore, of the view that justice would be best served and addressed if the proceedings in CGR case No. 1269/2019 arising out of Karaya Police Station Case No. 157/2019 dated 11.04.2019 under Sections 406/420/409/120B of the Indian Penal Code now pending before the learned Chief Judicial Magistrate, Alipoe, South 24 Parganas be transferred to be dealt with by the learned Special Judge, CBI at South 24 Parganas, against the said Bipin Vohra and others.
Hence, let the impugned proceedings pending before the learned Chief Judicial Magistrate, Alipore, South 24 Parganas stand transferred to be heard by the learned Special Judge, CBI alongwith CBI proceeding against Bipin Vohra and ors.
Accordingly, the investigation of the CGR Case No.1269 of2019 shall also be transferred to the CBI.
In view of the above, this court is of the view that the interim order of protection granted earlier, is not required any further and is hereby vacated.
With the above observations, the instant Criminal Revisional Application stands disposed of. Consequently, the application being CRAN 3092/2019 also stands disposed of.
There will be no order as to costs.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.