ORDER
1. Admit.
2. Senior Advocate Shri S. Dessai waives service on behalf of respondents No. 1 With consent of Advocates for the parties heard forthwith.
3. The petitioners have approached this Court under section 482, Cr.P.C. for the purpose of quashing of Criminal Complaint No. 78/P/96 filed by respondent No. 1 against the petitioners the Court of Judicial Magistrate F. C. Vasco-da-Gama. The petitioners also seek to set aside search warrant issued by the Magistrate by impugned orders dated 21-5-1996 with a further prayer to stop the search forthwith. Search in pursuance of the search warrant issued by the Magistrate had already started from 22nd May, 1996 and the same was in progress when this matter was heard. It was stated at that time that the search was in final stages and was due to be completed shortly.
4. Advocates for the parties argued the matter at length on facts as well as on law points.
5. The main contentions advanced by Advocate Shri Badrinarayan for the petitioners are :
That the respondent No. 1 who had taken contract for certain works for Union of India had left the work incomplete; that the Government was entitled to complete the said work; Government had lien over the property in question as the value of the material to the extent of 85% had already been paid and for the balance of 15% there was Bank Guarantee; that respondent No. 1 had already filed a Civil Suit; that the matter in question is of civil nature and there is absolutely no mens rea involved; that the petitioners had acted in good faith under instructions from higher authorities and that sanction to prosecute some of the petitioners which is required under law, has not been obtained. In order to substantiate his contentions, Advocate Shri Badrinarayan placed before me lots of papers which are admittedly not before the Magistrate and also rulings on points involved in the matter.
6. On the other hand, Senior Advocate Shri S. Dessai urged before me that no cognizance in the matter has been taken; that the authorities have acted without following proper procedure and with criminal intention; that he petitioners threatened the staff of respondent No. 1, broke open godowns and even removed personal belongings of respondent No. 1 and his employees. He also relied upon a number of rulings.
7. In so far as the argument relating to taking of cognizance is concerned, there is absolutely no force in the submission made by the Senior Advocate Shri S. Dessai. The Magistrate had recorded the statement of the complainant under Section 200, Cr.P.C. for the purpose of prayers (a) and (b) as can be seen from the deposition of the complainant which is on record. Prayer (a) relates to issue of process against the petitioners and prayer (b) relates to issue of search warrant. Reading of impugned order dated 21st May, 1996 further reinforces the said conclusion wherein the Magistrate in the end of para 4 at page 7 has come to the conclusion that it is fit case for issuing search warrant pending further inquiry into the complaint for issuing process. Of course, if the Magistrate had taken cognizance for the purpose of issuing search warrant, he could not be said to have taken cognizance under Section 190(1)(a), Cr.P.C. However, the Magistrate in this case had examined the complainant under Section 200, Cr.P.C. for the purpose of issuing process which means that the Magistrate had taken cognizance of the complaint under Section 190(1)(a), Cr.P.C.
8. The next point to be examined is whether this court in exercise of inherent powers under Section 482, Cr.P.C. should quash the complaint and stop further search which had in fact commenced prior to the filing of this application and was nearing completion when the matter was heard. It is an admitted position, which is well settled by many authorities of the Apex Court, that inherent powers under Section 482, Cr.P.C. have to be exercised sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and in cases which call for exercise of the said jurisdiction. The Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, has enumerated some instances where an order of Magistrate issuing process against the accused can be quashed and set aside. The said stage has not yet reached in the case under consideration. The Apex Court in State of Haryana v. Bhajan Lal , has enumerated a few categories of cases wherein inherent powers under Section 482, Cr.P.C. should be exercised in a case seeking quashing of First Information Report. In fact, the same principles would apply in case of complaints filed by private parties. It has been pointed out therein that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. But the Apex Court has laid down following categories of cases where such power should be exercised :
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
9. Coming to the facts of the complaint and deposition of the complainant, it is to be noted that the complaint in fact centres around the contract which was taken by the complainant namely respondent No. 1. However, it is to be noted that the said complaint as well as in the deposition of the complainant under Section 200, Cr. P.C. there are averments that the petitioners had threatened the workers of the complainant and they had also removed the personal belongings of the complainant and his staff members. According to the complainant the petitioners took away not only construction material, but also personal effects of his staff like washing machine, thermos flask, table fans, office furniture, two telephones and records. The Magistrate is seized of the matter and further inquiry in the matter is in progress.
10. In the light of the above mentioned facts, it has, therefore, to be determined whether this Court should exercise inherent jurisdiction under Section 482, Cr.P.C. As I have already pointed out that the Magistrate is seized of the matter and the inquiry before issuing of process is in progress. It cannot be said at this stage whether process would be issued against the petitioners or not and even if process is issued, the petitioners can place all material before the Magistrate which is sought to be placed before me under Section 482, Cr.P.C. and the Magistrate can be asked to recall the process, if any, issued. It is not a case where straightway the complaint can be quashed, since as I have already pointed out there are also averments relating criminal offences unconnected with the contract in question. Alternative remedy is available to the petitioners and it would not be proper to deprive the Magistrate, who is seized of the matter, of an opportunity to apply his mind to the facts of the case in order to determine whether the process should be issued or not. On this aspect I am supported in my view by two judgments of this Court in Ratansi Mulji v. Vinod Ratilal Gandhi, AIR 1991 Bom 407 and Pandey Ajay Bhushan, Collector and District Magistrate, Jalgaon v. Shri Suresh-Kumar Bhikamchand Jain 1994 Cri LJ 1726.
11. In view of the above I am of the opinion that this is not a fit case at this stage to exercise jurisdiction under Section 482, Cr.P.C. It goes without saying that the Magistrate while taking decision on the question of issue of the process shall satisfy himself that the matter before him is not of civil nature and that there was mens rea to commit offence, if any. The Magistrate shall also bear in mind whether the offences complained would require sanction or not. There is no question of interference with the search warrant since the execution of the same had started even prior to the filing of this application and the search was stated to be near completion when the matter was heard.
12. Subject to the aforesaid observations, the application under Section 482, Cr.P.C. is hereby dismissed at this stage.
13. Petition dismissed.