Case Note & Summary
The Bombay High Court was considering two writ petitions filed under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of an order dated 07-04-2021 passed by the Judicial Magistrate First Class, Wada in O.M.A. No. 105 of 2021 and the FIR bearing Crime No. 0129 of 2021 dated 13-04-2021 registered at Wada Police Station for offences punishable under Sections 420, 465, 467, 468, 469, 470, 471 read with Section 120(B) of the Indian Penal Code, 1860. Writ Petition No. 1805 of 2021 was treated as the lead petition. The petitioners in Writ Petition No. 1805 of 2021 were Indiabulls Housing Finance Ltd., Mr. Rajiv Gandhi, and Mr. Santosh Khopade, while the petitioner in Writ Petition No. 6812 of 2021 was Atul Chordia. The respondents were the State of Maharashtra through Wada Police Station and Ashutosh Kamble, the original complainant. The matter was reserved on April 08, 2022 and pronounced on May 04, 2022 by a Division Bench comprising Justice Prasanna B. Varale and Justice S.M. Modak. The petitioners, represented by Senior Advocates Mukul Rohatgi and Amit Desai, contended that the complaint filed by respondent no.2 was absolutely malafide and part of similar attempts made earlier against the petitioners by certain persons to extract money through false and frivolous criminal proceedings. They submitted that respondent no.2 had no personal loss and had for the first time invested in shares of the company on 17-03-2021, and within less than ten days approached the police with alleged grievances. It was further argued that respondent no.2, a resident of Dadar, Mumbai, deliberately shifted to Biloshi, Wada and executed a leave and licence agreement for a room at Palghar on 26-03-2021, the same day he approached Wada Police Station, thereby artificially creating territorial jurisdiction. The petitioners also pointed out that the Magistrate had passed the order under Section 156(3) CrPC without application of mind and without an affidavit in support of the complaint as required by the Supreme Court in Priyanka Srivastava v. State of U.P. They relied on State of Haryana v. Bhajan Lal, particularly category 7 of paragraph 102, to argue that the FIR should be quashed as an abuse of process. The court reproduced the earlier Division Bench order dated April 27, 2021 which had considered the prayer for interim stay of investigation. In that order, the Division Bench noted that the complaint consisted of 92 paragraphs alleging fraud, siphoning of money through dummy entities, and other offences, but that the sequence of events—share purchase on 17-03-2021, execution of leave and licence agreement on 26-03-2021, approach to police on the same day, complaint to Superintendent of Police on 30-03-2021, and filing under Section 156(3) CrPC on 03-04-2021—demonstrated a deliberate design to create jurisdiction and proceed with malafide haste. The earlier order observed that there was not even a prima facie case for registration of FIR and that the Magistrate failed to appreciate the lack of territorial jurisdiction and the absence of an affidavit. The court also noted the reliance on Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra for the proposition that a clear case for stay of investigation was made out. However, the final operative directions of the Bombay High Court in the present writ petitions were not included in the excerpted portion of the judgment, and therefore the final decision could not be determined from the provided text.
Headnote
A) Criminal Procedure - Quashing of FIR - Code of Criminal Procedure, 1973, Section 482 - Abuse of Process of Law - The petitioners sought quashing of the order dated 07-04-2021 passed by the Judicial Magistrate First Class, Wada under Section 156(3) CrPC and the consequent FIR Crime No. 0129 of 2021 dated 13-04-2021 for offences punishable under Sections 420, 465, 467, 468, 469, 470, 471 read with 120(B) IPC. The petitioners contended that the complaint filed by respondent no.2 was malafide, engineered to extract money, and that no prima facie offence was made out. The earlier Division Bench order dated April 27, 2021 observed that the complaint appeared to have been set up with the design of making wild allegations and that there was not even a prima facie case for registration of FIR (Paras 1-6). B) Criminal Procedure - Territorial Jurisdiction - Code of Criminal Procedure, 1973, Section 156(3) - Territorial Jurisdiction of Magistrate - The petitioners alleged that respondent no.2, a resident of Dadar, Mumbai, executed a leave and licence agreement for a room in Palghar on 26-03-2021 solely to create artificial jurisdiction and filed the complaint before the police authorities on the same day. The earlier Division Bench order noted that the Magistrate in the present case had no territorial jurisdiction to entertain the complaint because the respondent no.2 deliberately created a false basis for invoking the jurisdiction of the Magistrate (Paras 5-6). C) Criminal Procedure - Pre-filing Requirements - Code of Criminal Procedure, 1973, Section 156(3) read with Priyanka Srivastava - Affidavit in Support of Complaint - The petitioners argued that the complaint did not have an affidavit in support as required by the Supreme Court in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287, and contained false statements verifiable from material on record. The earlier order recorded the submission that the Magistrate failed to appreciate these defects and that the complaint did not satisfy the requirements of law (Paras 5-6). D) Constitutional Law - Writ Jurisdiction - Constitution of India, Article 226 - Interim Stay of Investigation - The court considered whether to grant interim stay of investigation at the nascent stage in light of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315. The earlier observations noted that respondent no.2 purchased shares for the first time on 17-03-2021, approached the police within days, and filed the complaint before the Magistrate on 03-04-2021, indicating malafide haste and lack of personal loss (Paras 5-6).
Issue of Consideration
Whether the order dated 07-04-2021 passed by the Judicial Magistrate First Class, Wada in O.M.A. No. 105 of 2021 and the FIR bearing Crime No. 0129 of 2021 dated 13-04-2021 for offences under Sections 420, 465, 467, 468, 469, 470, 471 read with 120(B) of the Indian Penal Code, 1860 should be quashed; whether the complaint was malafide and filed with oblique motive; whether the Magistrate had territorial jurisdiction; whether the complaint complied with the requirement of an affidavit under Priyanka Srivastava v. State of U.P.; whether there was a prima facie case for registration of FIR.
Law Points
- Quashing of FIR under Section 482 CrPC
- Territorial jurisdiction of Magistrate under Section 156(3) CrPC
- Requirement of affidavit under Priyanka Srivastava
- Malafide complaint and abuse of process
- Interim stay of investigation under Neeharika Infrastructure
