THIRANI CHEMICALS LIMITED Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) The petitioner has filed a petition under Section482 of the Code of Criminal Procedure (Code for short) for quashingcriminal proceedings alleged to be pending in the Court of Additional ChiefMetropolitan Magistrate, Delhi and filed by the respondent i.e. the Registrarof Companies u/Sec. 113(2) of the Companies Act, 1956. During the pendency of this petition the present application has been filed for stay ofproceedings in the meanwhile.

(2.) I have heard arguments advanced by the learned Counsel for theparties. The main contention on behalf of the petitioner is that when thereis a proper challenge for quashing of proceedings under Section 482 of theCode, then till that petition is disposed off, this Court should stay theproceedings. He drew my attention to some authorities. The first case isthat of Srinivas pal v. Union Territory of Arunachal pradesh reported in AIR1988 Supreme Court, 1729. The accused in that case was charged with rashand negligent driving under Sections 279, 304-A and 338 Indian Penal Code on 20.11.76.A delay of 9-1/2 years in taking cognizance was alleged. The Magistratewas alleged to have taken cognizance by invoking Regulation 32 of AssamFrontier (Administration of Justice) Regulation (1945) because the CriminalProcedure Code was not applicable at that time in the State of ArunachalPradesh. There the Magistrate took cognizance of the offence despite anobjection by the accused and stated in his order that the reason why reportcould not be placed before the Court promptly merited detailed probing.Therefore, the appellant was charged and cognizance was taken by theMagistrate on 31.3.1986. It was in these circumstances, that the petitionwas filed under Section 482 of the Code wherein when the High Courtrefused to quash the proceedings, the same was done by the Supreme Court.In Surinder Mohan Vikal v. Ascharj Lal Chopra reported in 1978 Crl.L.J.,764, there was a complaint of defamation under Section 500 IPC. A pleawas taken in that case that the complaint was time barred. The High Courtwhen approached under Section 482 of the Code refused to quash theproceedings. The appeal was, however, allowed by the Supreme Court andthe order of the Magistrate taking cognizance of the offence was quashed.Defamation complaint was preceded by a long chain of criminal prosecutionof the complainant under Sections 406/420 Indian Penal Code in which he earned acquittalin almost 3 years. However, it may be noted that recently in K.M. Mathewv. State of Kerala and Another reported in AIR 1992 Supreme Court 2206,a complaint was filed under Sections 500 and 34 Indian Penal Code against the Chief Editorof Malayala Manorama, and Printer and Publisher of the newspaper. TheMagistrate took cognizance and issued summons against the accused persons.The appellant before the Magistrate requested to drop the proceedingsagainst him on the ground that the complainant had not alleged that theChief Editor was responsible for selection of the news item and publicationthereof. There was not even an averment in the complaint that the ChiefEditor had perused the material or edited before its publication or that itwas published with his knowledge or consent. This plea of the appellantwas accepted by the Magistrate and proceedings were dropped against him.However, when a revision was filed against that order in the High Court bythe complainant, the order of the Magistrate was set aside holding that thequestion of conviction or acquittal will arise only after recording evidence ofthe parties and there was no question of discharging the accused at anintermediate stage. In the background of the aforesaid facts when appealwas filed in the Supreme Court, it held that after the accused entersappearance before the Magistrate, it is open to him to plead before theMagistrate that the process against him ought not to have been issued.The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could betried. It is his judicial discretion. No specific provision is required for theMagistrate to drop the proceedings or rescind the process. The orderissuing the process is an interim order and not a judgment. It can be variedor recalled. The fact that the process has already been issued is no bar todrop the proceedings if the complaint on the very face of it does not discloseany offence against the accused. From the above rule of law laid down bythe Supreme Court, it is clear that even the Magistrate has the power tohold, on an application of the accused when he enters appearance afterbeing summoned, that no case is made out against him and the proceedingsagainst him should be dropped. Similarly in the present case it can verywell be pleaded even before the Court of the Additional Chief MetropolitanMagistrate that the complaint filed against the petitioner is barred by time.On behalf of the complainant it has been contended that the offence imputedto the petitioners was actually discovered on 6.11.1992 and if the knowledgeof the offence was derived that day, the complaint was in time. In thisrespect the further case of the petitioner is that the Registrar of Companiesin the facts and circumstances of the present case is not an aggrieved person.Even this point can be taken up before the Magistrate and if the Magistrateis satisfied that the complaint is either time barred or that the complainantis not an aggrieved person against them, the Magistrate can very well recallthe order of summoning of the petitioners. It may also be noted in this casethat even a copy of the complaint on the basis of which the petitioners arebeing prosecuted has not been filed on record. Therefore, otherwise alsoit is not possible to come to a definite conclusion at this stage that thecomplaint against the petitioners is barred by time or that the complainantis not an aggrieved person. Hower, if the petitioners think that they areentitled to the recall of the order of summoning by the Magistrate for anyreason whatsoever, they are at liberty to apply before the Magistrate and ifthe Magistrate agrees with their view, he can certainly recall that order. Itis not a fit case for grant of a stay. Petition is therefore, dismissed.

(3.) Before parting with this matter I may note that it has beenobserved in many cases that a practice has developed by now that as soonas there is a summoning order, the aggrieved party approaches the HighCourt u/Sec. 482 of the Code for quashing. In such matters, the appropriatecourse is first to approach the concerned Magistrate for recall of the order.In that situation the High Court will have the advantage of the consideredopinion of the Magistrate, and it can always exercise its inherent powers ifit feels that the Magistrate has gravely erred. But still it may be possibleto visualize cases where already there has been a long delay and theproceedings remained pending before the Magistrate for quite sometime. Insuch cases it will be appropriate for this Court to interfere u/Sec. 482 of theCode in the interest of justice or to prevent an abuse of the process of theCourt. But to ask this Court to interfere at the very threshold of theprosecution does not appear appropriate because it practically amounts toshifting of the prosecution case from the competent Court of a Magistrate tothis Court and especially when the Magistrate himself is empowered to recallthe order of summoning.