IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH) CRIMINAL PETITION 45/2008

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH) CRIMINAL PETITION 45/2008 Sudhanshu Kumar.. Petitioner - Versus Mr. Ananda Bharali.. Opposite party P R E S E N T THE HON BLE MR. JUSTICE I A ANSARI For the petitioner For the opposite party : Mr. Das, Senior Advocate Mr. K Das, Mr. S Khound, Advocates. : None appears Date of hearing : 06.02.2012. Date of judgment : 10-02-2012. JUDGMENT & ORDER With the help of this application, made under Section 482 Cr.PC., the petitioner, who is one of the accused in CR Case No.153/2007, pending in the Court of learned Sub-Divisional Judicial Magistrate (Sadar), Kamrup, Guwahati, has sought for, inter alia, quashing of the complaint. 2. I have heard Mr. D Das, learned counsel for the petitioner. None has appeared on behalf of the opposite party. 3. The case of the complainant may, in brief, be described thus: (i) For the purpose of purchasing a vehicle, on the basis of hirepurchase agreement from the ICICI Bank Ltd, which stands impleaded as accused No.1, the complainant approached the ICICI Bank and entered into a hire-purchase agreement, on 22.11.2005, with the said Bank, which accorded financial sanction for payment of Rs.1,56,284/-. In terms of the said agreement, the complainant having undertaken to repay the loan, with interest, in 48 equal installments. In order to secure

2 the loan, which had been so given to the complainant, the ICICI Bank took 48 numbers of post dated blank cheques signed by the complainant. (ii) As the complainant was in need of a vehicle for the use of his wife and children, he issued the said 48 numbers of post dated blank cheques drawn at the complainant s ICICI Bank, namely, Lahkimi Gaonlia ICICI Bank, Ahotguri Branch, in favour of the ICICI Bank towards liquidating the loan and interest, which may accrue thereon subject to the condition that the complainant would pay Rs.9,735/- per installment till full realization of the amount financed with interest accruing thereon. (iii) Thereafter, as per quotation, the ICICI Bank advanced a loan of Rs.3,86,700/-, under the hire-purchase agreement, to the complainant, who accordingly purchased the vehicle from M/S Ghosh Brothers, Christian Basti, Guwahati. The vehicle was, then, registered at the office of the District Transport Officer, Kamrup, showing the complainant as the registered owner of the vehicle and also showing that the vehicle is under hire-purchase agreement with the ICICI Bank. (iv) The complainant, having sufficient money in his account at Lahkimi Gaonlia ICICI Bank, Ahotguri Branch (renamed as Gramin Bikash ICICI Bank), issued a cheque for one installment towards payment of Rs.9,375/- as had been agreed to by the parties concerned and he (i.e., the complainant) was under the impression that the ICICI Bank will withdraw the monthly installment from the complainant s Bank account at Lahkimi Gaonlia bank, Ahotguri Branch, through post dated cheques, which had already been deposited with the ICICI Bank by the complainant. (v) However, accused Nos.3 and 4, namely, Diganta Das and Arup Pathak respectively, advised the complainant, over phone, to pay his

3 installments at Bhangagarh Branch of their ICICI Bank. The complainant, on 01.08.2006, accordingly paid a sum of Rs.9960/- to the ICICI Bank as had been advised by the accused Nos.3 and 4. Thereafter, accused Nos.3 and 4 came to the house of the complainant, introduced themselves to be the authorized agents of the ICICI Bank and asked the complainant to pay monthly installments to them since they were authorized agents of the ICICI Bank for the purpose of collection of the ICICI Bank s dues. As the complainant denied to pay to the accused Nos.3 and 4 any money, because he had already issued 48 numbers of post dated cheques for repayment of loan as aforesaid, both the accused informed the complainant that the ICICI Bank and the accused No.2, namely, Manager Collection, ICICI Bank, Guwahati, had not received installments due to the ICICI Bank through post dated cheques issued by the complainant and they had, therefore, asked the complainant to pay his dues to the accused Nos. 3 and 4, but the complainant denied to make any payment to accused Nos. 3 and 4. After about a week, accused Nos.3 and 4, again, appeared before the complainant at his residence and asked him to pay monthly installments, but when the complainant asked for the receipt of the installments to be paid, both the accused assured that they would deposit the money in the loan account of the complainant as they were authorized agents of the ICICI Bank and, on their assurance, the complainant paid them an amount equal to six installments of Rs.9,735/- to be deposited with the ICICI Bank. This apart, the ICICI Bank, on 15.07.2006, withdrew an amount of Rs.9,735/- with the help of the post dated cheque, which the complainant had given to the ICICI Bank. Likewise, the ICICI Bank also, with the help of accused No.2, encashed two of the post dated cheques for a sum of Rs.10,000/-, on 14.09.2006, from the complainant s

4 account maintained at Lahkimi Gaonlia ICICI Bank, Ahotguri Branch. Thereafter, two more cheques were encashed by the accused No.2, namely, Manager Collection, ICICI Bank, Guwahati, for a sum of Rs.9735/- and Rs.13,270/- on 09.12.2006 and 26.12.2006 respectively. (vi) On 01.02.2007, when the complainant and his driver, Pradip Saikia, were coming to Guwahati from complainant s native village, Sidhabari, to deposit monthly installment directly to the ICICI Bank at Bhangagarh, three unknown persons, at about 10.45 am, stopped the vehicle of the complainant, at Jorabat, and asked the complainant and his driver to get out of the vehicle. One of the unknown persons, then, took away the keys of the vehicle. The said three persons introduced themselves to be the authorized agents of the ICICI ICICI Bank and asked the complainant to hand over the vehicle to them. When the complainant told them that he was, on the way to Guwahati for depositing the monthly installment and also to get the vehicle serviced and requested them to hand over the keys to him, the three persons misbehaved with the complainant and his driver and asked them to sign on a paper, which appeared to have been issued from the ICICI Bank containing general information of the assets or else. As the accused Nos. 3 and 4 threatened the complainant with dire consequences. The complainant, out of fear, put his signatures on the said paper issued by the ICICI Bank. The accused Nos. 3 and 4 also took away two installments from the complainant, which the complainant was carrying with him to be deposited at Bhangagarh Branch of the ICICI Bank. The complainant s signatures were, thus, obtained by force and the three persons took away the money forcibly, whereupon the complainant went back to his native village at Morigaon and lodged a First Information Report, at Dharamtul Police Station, as regards the

5 occurrence of taking away of the vehicle and the matter is still under investigation. 3. The complainant, therefore, prayed, in the compliant, to issue search warrant for recovery and seizure of the vehicle through Superintendent of Police, Guwahati, and to take cognizance of offences under Sections 403, 409, 418, 334, 347, 341, 377A and 506 IPC and issue warrants of arrest against the accused. 4. By order, dated 15.10.2007, the learned Sub-Divisional Judicial Magistrate, Guwahati, on recording the complainant s statement under Section 200 Cr.PC., held that the complainant had made out a case under Section 109 IPC against all the accused and also against the said ICICI Bank and accordingly, took cognizance of offences under Sections 384 and 109 IPC and, then, directed issuance of warrants of arrest against all the accused. The learned Magistrate also directed issuance of search warrant for making search and seizure of the complainant s vehicle with further direction to the Officer-in-Charge concerned to do the needful and furnish report to the Court. The petitioner, who has been described as accused No.2, Manager, Collection, ICICI Bank, Guwahati, is before this Court seeking to get the complaint quashed and the warrants of arrest recalled. 5. Before I enter into the merit of the present application made under Section 482 Cr.P.C. and/or before I decide the correctness of the impugned order, dated 15-10-2007, whereby the learned Magistrate has taken cognizance of offences under Sections under Sections 384 and 109 of the IPC and directed issuance of warrants of arrest and also issuance of search warrant, it is apposite to take note of the position of law as regards criminality in a transaction involving a hire purchase agreement.

6 6. A hire-purchase agreement is an executory contract, whereunder certain movable property is let on hire by the owner of the property to another party, called the hirer, on certain terms and conditions stipulated in the hire-purchase agreement. Under a hire-purchase agreement, the hirer has the option to purchase the property on payment of a certain sum, or when the hire rental payments reach the hire-purchase price stipulated in the agreement. (See Sundaram Finance Ltd. V. State of Kerala and another, reported in AIR 1966 SC 1178, and Charanjit Singh Chadha and others v. Sudhir Mehra, reported in (2001) 7 SCC 417. Originally, hire-purchase agreements were entered into between a dealer and a customer, because a dealer used to extend the credit to a customer in the form of hire-purchase agreement. However, when the hire-purchase schemes gained popularity and the market of hire-purchase expanded, the dealers, who did not have sufficient working capital, found it difficult to extend the scheme of hirepurchase liberally to potential customers. This situation paved the way for the individuals and financial institutions to enter into the market of hire-purchase. The financial companies, in such cases, would buy the goods from the dealer, on hire-purchase, and let the same to the customer under hire-purchase agreement, obviously, on terms and conditions to be agreed upon between the finance company and the customer. The dealer would, then, deliver the goods to the customer and, thereafter, drop out of the transaction leaving the financier to collect the installments directly from the customer. Thus, under a hirepurchase agreement, the hirer simply pays for the use of the goods with option to purchase the same. The finance charged, representing the difference between cash price and the hire-purchase price, is not

7 interest, but a sum, which the hirer has to pay for the privilege of being allowed to discharge the hire-purchase price of the goods by installments. 7. In Damodar Valley Corporation v. State of Bihar (AIR 1961 SC 440), the Supreme Court took the view that a mere contract of hiring without anything more is a species of the contract of bailment, which does not create any title in the bailee. This view has, however, undergone considerable change as pointed out in Charanjit Singh Chadha (supra). A contract of hire-purchase, ordinarily, confers no title on the hirer, but the hirer gets an option to purchase the hired goods on fulfillment of certain conditions. However, a hire-purchase contract may also provide for the hirer to purchase the hired goods by deferred payments subject to the condition that the title of the goods shall not pass over to the hirer until all the installments are paid. Of course, there may be variations in a contract of hire-purchase depending upon the terms agreed upon between the parties concerned. 8. The Supreme Court has pointed out, in K. L. Johar and Co. v. CTO (AIR 1962 SC 53) and Installment Suplly (P) Ltd. V. Union of India (AIR 1966 SC 1178), that a hire-purchase agreement has two elements, namely, (i) an element of bailment, and (ii) an element of sale, for, such an agreement contemplates an eventual sale inasmuch as the goods (which remains till then hired) stands sold, when all the terms of the agreements are satisfied and the option to purchase the hired goods is exercised. 9. In the context of the case at hand, I deem it apposite to refer to the facts of Charanjit Singh Chadha s case (supra), where a complaint was lodged, with the Judicial Magistrate, containing the allegation that the motor vehicle, in question, had been lying with a mechanic for some

8 repairing work and it was from the mechanic that the financier of the vehicle had forcibly taken away the vehicle. It was alleged by the hirer that the financier had, thus, committed offences under Sections 406/420/120b IPC. The Judicial Magistrate took cognizance of the offences aforementioned and accordingly issued summons to the financier, whereupon the financier filed a petition, under Section 482 CrPC, seeking quashing of the complaint proceeding. The financier s plea was that the vehicle had been purchased by the complainant on the strength of a hire-purchase agreement and, as the complainant had failed to repay the loan in terms of the agreement between the parties, the financier had terminated the agreement and it was the complainant, who had surrendered the motor vehicle to the financier. The Punjab High Court declined to quash the proceedings by holding that the allegations, made in the complaint, did make out commission of offence of theft under Section 379 IPC. It was against this order of the High Court that the financier carried an appeal to the Supreme Court, wherein it was contended, on behalf of the financier-appellant, that even if it was proved that the vehicle had been forcibly taken away from the custody of the respondent, the same may not amount to an offence, under the law, as the hire-purchase agreement, in question, provided for repossession of the vehicle by the owner, namely, financierappellant, in the event of default by the hirer-respondent. The Supreme Court points out, in Charanjit Singh Chadha (supra), that Clause 8 (iii) of the agreement between the parties gives a right to the owner to repossess the vehicle in case of default by the hirer and despite this clause, a plea was taken, in the High Court, that since the vehicle was in the possession of the hirer and the same was taken away from his custody without his consent, the acts of the financier amounted to

9 offence of theft. This plea, according to what Charanjit Singh Chadha (supra), lays down, is wholly without any basis, for, the financier had repossessed the vehicle in exercise of its right under the agreement of hire-purchase. 10. The Supreme Court has also pointed out, in Charanjit Singh Chadha (supra), that in certain circumstances, as given in illustration (k) of Section 378 IPC, even the owner of a property may be liable for committing theft of his own property, which implies that in order to make out a case of theft, the ingredient of dishonest intention must be shown to be present and in case of hire-purchase agreement, since the element of dishonest ingredient is lacking, the financier s taking away the vehicle, in exercise of his rights under the hire-purchase agreement, does not amount to an offence of theft. The Supreme Court has referred to the observations made, in Hire Purchase Law and Practice (Second Edition), at page 846, which read as under: 14. It would seem that so long as the hirer is in possession of the goods they below to him for the purpose of the Act (The Theft Act, 1968) even though his possession is unlawful e.g. because the hirepurchase agreement has come to an end. If the owner has an enforceable right to possession then he will not be guilty of theft in seizing the goods if he knew of his legal rights since he will not be acting dishonestly but will have taken the goods in the wellfounded belief that he has a right to resume possession. 11. It may, therefore, be summed-up that the Supreme Court has held, in Charanjit Singh Chadha (supra), that when a financier repossesses, as owner, a vehicle from the hirer pursuant to the hire-purchase agreement, the taking away of the vehicle by the financier, as owner, would not constitute the offence of theft inasmuch as the element of dishonest intention (which is the ingredient of the offence of theft) is lacking, for,

10 the financier, as owner, takes away such a vehicle in exercise of its right under an agreement entered into between the parties. 12. It is pertinent to mention here that commission of theft, as defined under Section 378 IPC, consists of two parts, (i) moving of a movable property of a person out of his possession without his consent, and (ii) such moving of the property being in order to take the property with dishonest intention. Thus, (1) the absence of the person s (possessor s) consent at the time of moving of the property, and (2) the presence of dishonest intention in so taking away the property are the essential ingredients of the offence of theft. If both these elements of dishonest intention and absence of consent, as indicated hereinbefore, are not present in a given case, the mere taking away of a property by a person without the consent of the owner or possessor of the property would not amount to an offence of theft unless such taking away is with dishonest intention. 13. It is Section 24 IPC, which defines dishonesty. According to Section 24 IPC, whosoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. Section 23 of the IPC explains what is wrongful gain and what is wrongful loss. Wrongful gain is gain by unlawful means of property to which the person gaining is legally entitled. Wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. This Section further clarifies that a wrongful gain means both wrongful acquisition as well as wrongful retention and wrongful loss includes wrongful deprivation of property as well as being wrongfully kept out of any property. 14. Section 24 IPC, thus, shows that the intention to cause either wrongful gain or wrongful loss must be present in an act or omission in

11 order to make such an act or omission a dishonest act. It is important to note that in the case of wrongful gain, the person gaining is not legally entitled to the property and, in wrongful loss, the person losing is legally entitled to the property. Viewed thus, it is clear that be it a case of wrongful gain or wrongful loss, the person taking the property is not to be the person legally entitled to acquire the property or retain the property and, further, that the means, adopted by him to obtain the property, is unlawful too. 15. In the case of wrongful gain as well as wrongful loss, two essential elements are: (a) use of unlawful means and (b) unlawful acquisition. The existence of one without the other is not sufficient. It is necessary to bear in mind that the word, unlawful can be construed differently to give it two different meanings. When an act is merely prohibited, but is not made punishable, it is not unlawful within the meaning of Section 23. In order to become unlawful, an act must not only be prohibited, but must also be punishable. A person is said to gain wrongfully, when such person retains wrongfully as well as when such person acquires wrongfully. A person is said lose wrongfully, when such person is wrongfully kept out of any property and also when such a person is wrongfully deprived of property. 16. Hence, when a person is in possession of a property to which he is not legally entitled, he cannot suffer wrongful loss, if the property is taken away by the person, who is legally entitled thereto. When the financier acquires, in terms of a hire-purchase agreement, the right to repossess the property, there is corresponding loss of the right to retain the property by the hirer. In such an event, when the financier repossesses the property, he cannot said to have deprived the hirer of the property to which the hirer is, otherwise, legally entitled. In a given case, therefore,

12 when the offence of theft is alleged to have been committed by the person, who has provided finance under a hire-purchase agreement, the complainant must make out that (i) the accused, as financier, was not entitled to repossess the vehicle, (ii) the means employed, by the financier to take possession of the vehicle, were unlawful, and (iii) the taking away of the vehicle was without the complainant s consent. 17. No wonder, therefore, that Salmond, in his Treatise on Torts (1961), 13 th Ed., Page 804, Article 228, says any person entitled to the possession of goods may retake the goods either peacefully or by the use of reasonable force from any person, who has wrongfully taken or detained from him. Such a retaking, even though, forcible, is neither a civil injury nor a criminal offence. 18. It is imperative to note, with regard to the above, that there is no specific statute, as on today, governing the rights and liabilities of the parties to a transaction of hire-purchase. In fact, the law, as it stands today, leave the parties to their own arrangement in respect of various incidence of the hire-purchase agreement. As a corollary, a hirepurchase agreement would be binding on the parties unless any of the terms/conditions of the hire-purchase agreement contravenes the law or is against the public policy. If, in a hire-purchase agreement, the parties specifically provide for certain situations and prescribe a particular procedure to be adopted and/or specify the means, which the parties may use to resolve those situations, the parties are bound by those terms of the agreement. If the terms and conditions agreed to by the parties do not contravene any provisions of the law, such agreement would be lawful and if any of the parties exercises a right given to him under such an agreement, the other party cannot cry foul or complain.

13 19. From the discussions held above, it becomes transparent that if, on non-fulfillment and/or breach of any terms and conditions of hirepurchase agreement between a financier and a hirer, the financier takes possession of the hired property in accordance with the terms of the hire-purchase agreement, the hirer cannot complain that the financier has committed an offence of theft merely because the removal and/or taking possession of the property by the financier was without his formal consent. A hire-purchase agreement, by mutual agreement of the parties, vests, in the financier, the right to repossess the property and when the financier exercises his right, he cannot be said to have acted dishonestly, for, his act cannot be said to be an act done with the intention of causing wrongful gain or wrongful loss inasmuch as taking away of the property by the financier, in exercise of his rights, under the hire-purchase agreement, does not make the financier gain something, which he is not entitled to. When the financier repossesses a vehicle due to the default of the hirer in making payment of the installments stipulated, the act of such repossession would not amount to an offence of theft even if the repossession is without the consent of the hirer. It is, in this light, that the decision in Charanjit Singh Chadha (supra), needs to be read. 20. In Sardar Trilok Singh Vs. Satyadeo Tripati, reported in (1979) 4 SCC 396, the complainant had alleged that during his absence, the accused, in a high handed manner, came to the house of the complainant and forcibly removed the truck and thereby committed the offence of dacoity. The police investigated the case and filed a report. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the Sessions Court; but the revision was dismissed. Thereafter, the accused filed a petition

14 under Section 482 Crpc to quash the proceedings. That was summarily dismissed by the High Court and the matter, then, reached the Supreme Court at the instance of the accused financier. In para 5 of the judgment, the Apex Court observed that such a dispute was essentially a dispute of civil nature, for, the financier had acted bona fide in seizing the truck in exercise of the right given to him under the hire-purchase agreement. The relevant observations, made in Sardar Trilok Singh (supra), reads: "5. We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it was a very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties.......... Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30. 7. 1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck. " 21. K. A. Mathai Vs. Kora Bibbikutti, reported in (1996) 7 SCC 212, is a case, wherein a bus was obtained by the complainant on the basis of a hire-purchase agreement. For the default in making payment of the installments, when the financier took possession of the vehicle, the financier was prosecuted for offences under Section 379 read with Section 114 IPC. The Apex Court, in such circumstances, observed : "though we do not have the advantage of reading the hirepurchase agreement, but as normally drawn it would have contained the clause that in the event of the failure to make payment of installments the financier had the right to resume possession of the vehicle. Since the financier's agreement with A-2 contained that clause of resumption of possession, that has to be read, if not specifically provided in the agreement, as part of the sale agreement between A-2 and the complainant. It is, in these circumstances, the financier took possession of the bus from the complainant with the aid of the appellants. It cannot thus be said

15 that the appellants, in any way, had committed the offence of theft and that too, with the requisite mens rea and requisite dishonest intention. " 22. What clearly transpires from the observations, made in K. A. Mathai (supra), is that in the case of a hire-purchase agreement, when a financier takes possession of a vehicle from the hirer due to default in payment of installments, the financier does not commit the offence of theft. (See also Manipal Finance Corporation Ltd. V. T. Bangarappa and another, reported in 1994 Suppl. (1) SCC 507). 23. The Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri Jagmander Singh and Anr., reported in (2006) 2 SCC 598, is yet another case, where the financiers, who had financed a truck on the basis of a hire-purchase agreement, took over the possession of the truck from the hirer due to default in payment of installments and the hirer lodged a complaint with the RBI and also instituted a suit for, inter alia, mandatory injunction, the Apex Court observed as under : "9. Before we part with the case, it is relevant to take note of submission of learned counsel for the hirer that in several cases different High Courts have passed orders regarding the right to repossess where the High Court have entertained writ petitions including writ petitions styled as PIL on the question of right of financiers to take possession of the vehicle in terms of the agreement. It is stated that directions have been given to RBI for framing guidelines in this regard. If it is really so, the orders prima facie have no legal foundation, as virtually while dealing with writ petitions subsisting contracts are being rewritten. It is still more surprising that petitions styled as PIL are being entertained in this regard. Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existent. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But, mere fact that possession has been taken, cannot be a ground to contend that the hirer is prejudiced. " 24. From the observations made above, in The Managing Director, Orix Auto Finance (India) Ltd. (supra) too, it is abundantly clear that if a hire purchase agreement permits the financier to take possession of the

16 vehicle if the hirer defaults in making repayment of the installments, there is no impediment, on the part of the financier, to take possession of the vehicle. 25. From the various authorities discussed above, one may conclude that if a hire-purchase agreement, arrived at between the financier and the hirer, permits the financier to take possession of the vehicle in the event of the hirer s failure to make payment of the installments, there is no impediment, on the part of the financier, in taking possession of the vehicle even without the consent of the hirer if the hirer defaults in making payment of the installments. 26. While considering, however, the present criminal petition, it needs to be noted that Section 210 Cr.PC makes it clear that while dealing with a complaint case, when it is brought to the notice of the Magistrate that there is a police case pending, with regard to the subject matter of the inquiry or trial, which the Magistrate is holding, or, in other words, with regard to the subject matter of the complaint, then, the Magistrate shall stay further proceeding of the inquiry or trial, as the case may be, or, in other words further proceedings of complaint and call for a report from the police with regard to the progress of the case, which has been registered by police. If a report is made by an investigating police officer under Section 173 Cr.P.C. and, on such a report, cognizance of any offence is taken by the Magistrate, the Magistrate shall inquire into or try the complaint case as well as the case arising out of the police report as if both the cases were instituted on a police report. That is to say, the procedure of the trial would be as if the case has been instituted on a police report submitted under Section 173(2) Cr.P.C. If, however, the Magistrate does not take cognizance of any offence on the police report, he shall in accordance with the provisions of the Code, proceed with the inquiry or trial, which was stayed by him. That is to say the

17 Magistrate shall, then, proceed with the complaint in accordance with law. Since Section 210 is of great relevance in the present case, the same is reproduced hereinbelow: 210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such export cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. 27. In the present case, the complainant, with regard to the alleged occurrence, as already indicated above, had lodged an FIR at Dharamtul Police Station. In such circumstances, the learned Court below ought not to have taken cognizance of the offences aforementioned and ought not to have issued any process against the accused, far less warrants of arrest, and/or search warrant as has been

18 done in the present case; rather, the learned Court below ought to have called for a report in terms of the provisions of Section 210 Cr.PC. 28. What surfaces from the above discussion is that though the learned Magistrate could have taken cognizance, as has been done in the present case, he could not have directed issuance of warrants of arrest against the accused-petitioner nor could he have directed issuance of search warrant. 29. Because of the fact that I have already held above that the directions for the issuance of warrants of arrest and also the search warrant by the learned Court below were impermissible in law in the facts and attending circumstances of the present case, I refrain, at this stage, from quashing the complaint and interfere with order, dated 15.10.2007, to the extent that the same directs issuance of warrants of arrest and search warrants. 30. In the result and for the reasons discussed above, this criminal petition partly succeeds. While the order, dated 15.10.2007, is hereby, at this stage, maintained to the extent of taking of cognizance under Sections 384 and 109 IPC, the directions, contained in the said orders, as regards issuance of warrants of arrest and search warrant for making search and seizure of the vehicle, in question, are hereby set aside and the learned Magistrate is hereby directed to proceed with the matter in accordance with law bearing in mind the position of law as has been discussed above. JUDGE Njdutt/paul