Important Judgment Pronounced Today on Enquiry by Magistrate (13th May, 2019)

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Title of the Case – Enquiry by Magistrate

Name of the caseBirla Corporation Limited V. Adventz Investments and Holdings, Cr.A. 875 of 2019 (@SLP (Crl) No. 9053 of 2016)

Date of Judgment 13 May, 2019

Judges: Justice R. Banumathi and R. Subhash Reddy

Subject and sections involved Section 202 CrPC, 1973

 

Issue:

  1. whether order of the Magistrate summoning the accused can be sustained?

 

Fact of the Case:

The appellant complainant, Birla Corporation had alleged theft of fifty-four documents belonging to the appellant company by the respondents. A criminal complaint was filed by the appellant company alleging the commission of offences punishable under Sections 379, 403 IPC read with Section 120-B IPC.

Since some of the accused persons were residents beyond local jurisdiction of the court, the trial court/the Magistrate fixed the matter for enquiry under Section 202 CrPC. An employee of the appellant Company by name PB Dinesh was examined.

These appeals arise out of the judgment dated 15.05.2015 passed by the High Court of Calcutta in C.R.R. No.323 of 2011 in 1 Bar & Bench (www.barandbench.com) and by which the High Court quashed the complaint of the appellant-Company filed under Sections 379, 403 and 411 IPC read with Section 120-B IPC qua documents No.1 to 28 of the Schedule. Insofar as documents No.29 to 54 of the Schedule, the High Court remitted the matter to the trial court to proceed with the matter in accordance with law.

Priyamvada Devi Birla 2 Bar & Bench (www.barandbench.com) (PDB) and her husband Madhav Prasad Birla (MPB) were in control and management of several corporate entities which are collectively referred to as the M.P. Birla Group of Industries. They did not have any children. They have created several trusts for undertaking charitable activities in particular on the education side. PDB died on 03.07.2004 and MPB had predeceased her. There is an ongoing dispute over legality of a Will allegedly executed by Priyamvada Devi Birla (PDB) dated 18.04.1999 in favour of Rajendra Singh Lodha and respondent No.17-son of said Rajendra Singh Lodha. On 19.07.2004, a petition was filed by Rajendra Singh Lodha, father of respondent No.17 for grant of probate of the purported Will before the High Court at Calcutta. The Probate Petition has been converted into a testamentary suit for grant of Letters of Administration. Krishna Kumar Birla (KKB), Basant Kumar Birla (BKB), Ganga Prasad Birla (GPB) and Yashovardhan Birla (YB) have filed caveats to oppose the grant of probate of the said Will dated 18.04.1999. The High Court held that Ganga Prasad Birla (GPB) has a caveatable interest and therefore, he has a right to oppose the grant of probate of the said Will. The said testamentary suit is pending. Subsequently, Krishna Kumar Birla (KKB), Kashi Nath Tapuriah (KNT) and 3 Bar & Bench (www.barandbench.com) Pradip Kumar Khaitan (PKK) filed an application for grant of probate of the 1982 Will of Madhav Prasad Birla (MPB) and Ganga Prasad Birla (GPB); Kashi Nath Tapuriah (KNT) and Pradip Kumar Khaitan (PKK) have filed an application for grant of probate of the 1982 Will of Madhav Prasad Birla (MPB) before the High Court at Calcutta and the said testamentary proceedings are also pending.

 

Ratio of the case -

It is obligatory upon the Magistrate under Section 202 of Code of Criminal Procedure that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.

The purpose of the enquiry under Section 202 CrPC is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused.

Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused, the Court held.

Under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.

Only on such satisfaction, the Magistrate may direct issuance of process as contemplated under Section 204 CrPC, the Supreme Court made it clear.

Further, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable. In this regard, reliance was placed on Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749].