First of it kind: Combination of Companies u/s 6 of the Competition Act, 2002 cleared by CCI in flat 18 days

In very first application under section 6 of the Competition Act, 2002, Competition Commission of India has approved Reliance Industries’ acquisition (combination – as per the act) of Bharti Group’s 74 per cent stake in its insurance joint venture with French insurer Axa within 18 days of the notice. Competition Act is enacted by the parliament in the year 2002 keeping in view the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

In the operating part of the order, Competition Commission of India observed that in India as there are in total 49 Insurance companies, who are registered with IRDA, hence if the present acquisition (combination) is allowed, it is not likely to have an appreciable adverse effect on competition in the insurance market in India.

The order passed under Section 31(1) dated 26th July, 2011 under the Competition Act, 2002 can be read here. 

Territorial Jurisdiction of Court u/s 138 of Negotiable Instrument Act, 1981

Hon'ble Gujarat High Court while dealing with the issue of territorial jurisdiction of the court under Section 138 of the Negotiable Instrument Act, 1981 has distinguished on facts the land mark judgement of Hon'ble Supreme Court of India in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR Vs. M/s NATIONAL PANASONIC INDIA LTD., reported at 2009 AIR SCW 410 relying upon the division bench judgement of Bombay High Court and various earlier Supreme Court Judgement.

It has been held after discussing Section 177 of Code of Criminal Procedure that any court within whose jurisdiction either of the following acts has occured i.e. (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice, is competent and have jurisdiction to try the case u/s 138 of the Negotiable Instruments Act, 1981. 

The High Court inter alia observed as under:- 

“11. In paragraph 13, the Division Bench of the Bombay High Court has considered the decision of the Hon'ble Supreme Court in the case of SHAMSHAD BEGAM (SMT)(Supra), which reads as under;

“13. In SHAMSHAD BEGAM (SMT), a Single Judge of the Karnataka High Court had dismissed the petition under Section 482 of the Code where a prayer was made to quash the case pending on the file of learned Magistrate at Mangalore arising out of Section 138 of the NI Act. The appellant accused had filed the petition in the Karnataka High Court on the ground that the Mangalore Court had no jurisdiction to try the case because the agreement was entered into at Bangalore and the cheques were returned by the Banks at Bangalore. The respondent-complainant stated that before issuing the notice, he had shifted his residence to Mangalore and, therefore, he had issued the notice from Mangalore, which was received by the appellant-accused and the reply was sent by her to the appellant-accused at Mangalore address. As the notice in writing to the drawer of the cheque demanding payment of cheque amount was sent from Mangalore, the Court at Mangalore has jurisdiction to try the case. The High Court noted that one of the components of the offences was giving notice in writing to the drawee of the cheque by demanding payment of the cheque amount. The said action had taken place in Mangalore and, therefore, the petition was without merit. The Supreme Court referred to K. BHASKARAN and quoted extensively from it. The Supreme Court reaffirmed that offence under Section 138 of the NI Act has five components i.e. (1) Drawing of the cheque, (2) Presentation of the cheque to the Bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. The Supreme Court reiterated that it is not necessary that the above five acts should have been perpetrated at the same locality and it is possible that each of these five acts could be done at five different localities. The Supreme Court refused to interfere with the High Court's order. In our opinion, the law of jurisdiction has been succinctly stated in K. BHASKARAN followed by SHAMSHAD BEGAM (SMT) and we need to say nothing more on this aspect.”

11.1. Before the Bombay High Court, it was the case on behalf of the accused that the cheque was drawn on Syndicate Bank, Angamaly Branch, Ernakulam District, Kerala and the accused is doing business at Ernakulam and the dealership agreement was entered into at District Ernakulam and the notice was issued at Ernakulam and the cheque was handed over in Kerala and, therefore, Mumbai Court would not have any jurisdiction. On considering the aforesaid two decisions of the Hon'ble Supreme Court, and other decisions on the point, the Division Bench of the Bombay High Court negatived the said contention and held that the Court at Mumbai will have jurisdiction. The Division Bench of the Bombay High Court also considered the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra) (the decision, which is heavily relied upon by the learned advocate appearing on behalf of the respective applicants) and the Division Bench held that the said decision would not be applicable as in the case before the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra), on facts, Hon'ble Supreme Court held that the Chandigarh Court had jurisdiction to entertain the Complaints because the parties were carrying on business at Chandigarh and it has its branch office at Chandigarh. The transactions were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh and, therefore, considering the above, the Division Bench of the Bombay High Court held that the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra) is therefore, only an authority on the question whether a Court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down by the Hon'ble Supreme Court in the case of K. BHASKARAN (Supra).

12. Considering the aforesaid decision of the Hon'ble Supreme Court in the case ofK. BHASKARAN (Supra) and SHAMSHAD BEGAM (SMT)(Supra) what is emerging is that the offence under Section 138 of the Act has five components; (i) drawing of the cheque (ii) presentation of the cheque to the Bank (iii) returning the cheque unpaid by the drawee bank (iv) giving notice in writing of the to drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of the receipt of notice.

13. In the aforesaid decisions and the decision of the Bombay High Court it is specifically held that it is not necessary that the above five acts should have been perpetrated at the same locality. Each of these five acts could have been done at five different localities. Thus, from the aforesaid decisions and the observations made by the Hon'ble Supreme Court in the aforesaid decisions, the locality where the bank which dishonoured the cheque is situated cannot be regarded as a sole criteria to determine the place of the offence. In the aforesaid decision, the Hon'ble Supreme Court has further observed that the offence under Section 138 of the Act would not be completed with the dishonour of the cheque. It attains completion only with failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act and, therefore, considering the aforesaid decisions and the facts of the case on hand when the original complainant has its Head Office at Ahmedabad, the transactions are alleged to have taken place at Ahmedabad, the cheques are reported to be issued at Ahmedabad and the same were deposited by the original complainant with their Banker at Ahmedabad and even the statutory notice under Section 138 of the Act were issued from Ahmedabad and the same were replied by the respective applicants at the address at Ahmedabad, it is very difficult to accept the contention on behalf of the respective applicants that the Court at Ahmedabad would not have territorial jurisdiction.

14. This Court is in complete agreement with the reasoning given by the Division Bench of the Bombay High Court made while considering the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR(Supra). As seen from the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra), on facts, it was held that the Chandigarh Court had jurisdiction to entertain the Complaint because the parties were carrying on business at Chandigarh and had its Branch Office at Chandigarh and the transaction were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh. Only statutory notice under Section 138 of the Act was issued by the original complainant from New Delhi. Considering the aforesaid, the Hon'ble Supreme Court held that issuance of notice would not by itself give rise to a cause of action and, therefore, solely on the ground that notice was issued from the Head Office of the complainant at New Delhi Court at Delhi would not have territorial jurisdiction.

15. Under the circumstances and for the reasons stated hereinabove, the contention on behalf of the respective applicants that the Court at Ahmedabad would not have any territorial jurisdiction to entertain the Complaints in question cannot be accepted and, therefore, the present applications deserves to be dismissed and are accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier stands vacated forthwith in both of the applications"

Entire Judgment can be read here.

Euthanasia: SC Laid down procedure until Parliament makes legislation on the subject of euthanasia

That in the Writ Petition filed u/s 32 of Constitution of India, for prayer to grant of Euthnasia, Justice Markandeya Katju of Supreme Court as stated by himself in the judgement {reported at (2011) 4 SCC 454} could have dismissed the said writ petition summarily on the short ground that under Article 32 of the Constitution (unlike Article 226) the petitioner has to prove violation of a fundamental right as it has been held by the Constitution Bench decision of Hon'ble Supreme Court in the case of Gian Kaur vs. State of Punjab reported at 1996 (2) SCC 648 (vide paragr aphs 22 and 23) that the right to life guaranteed by Article 21 under Constitution of India does not include the right to die. Accordingly the petitioner has not shown any violation of any of her fundamental rights for which the present Writ Petition under Article 32 of the Constitution of India is filed. In spite of this Justice Katju goes on the decide the matter on merit and lays down certain guidelines by giving detailed judgment of more than 35 pages and after discussing various legal as well as medical scenario.

In general term Euthanasia is the termination of a very sick person's life in order to relieve them of their suffering. In most cases euthanasia is carried out because the person who dies asks for it, but there are cases called euthanasia where a person can't make such a request and hence such request is done by the next friend of the sufferer as in this case.

There are mainly two types of Euthanasia i.e. to say active and passive euthanasia. In active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life. It was discussed and held in the judgement after relying many Foreign Judgement and medical experts opinion thatpassive euthanasia (withdrawal of life support of a patient in permanent vegetative state ) was permitted to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years. Though it is categorically held that discontinuing of life support system had to be taken either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision could be taken even by a person or a body of persons acting as a next friend including doctors attending the patient and it was categorically held that it is Court alone who has power to take final decision as to whether or not allow Euthanasia or not as principle of parens patriae.

It was further held that however, injecting a deadly drug to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years remains illegal and a crime under S. 302 or at least S. 304 IPC and further even a Physician assisted suicide is a crime under S. 306 IPC.

In facts dismissing the petition filed by the best friend of petitioner as it was the case of Active Euthanasia and not Passive Euthanasia Supreme Court laid down procedure to be followed all over the India until Parliament comes out with a piece of legislation in the subject matter. Supreme Court held than when an euthanasia petition is filed before the High Court, the Chief Justice of the HC should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. That the Division Bench of the High Court should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit and Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician.

The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the HC. Simultaneously with appointing the committee of doctors, the HC should also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it was available - After hearing them, and going through the report submitted by the expert committee thoroughly the HC should give its verdict.

What was more praise worthy about the judgement is the credit and acknowledgemnt given by the Justice Katju in the concluding part to number of people including lawyers, law clerks, doctors, professors who paid a pivotal role in assisting the court to come to the decision which is not normally seen. Further Court also expressed their appreciation to the petitioner named Ms. Pinki Virani and kept her in high esteem who filed this petition by observing that although court have dismissed the petition Court regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical.

Relevant finding of the court is as under:-

“WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha's case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, it is the KEM hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live. Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years. However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support. (ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale's case (supra). In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw's play `The Doctors Dilemma'). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook's novel `Coma'). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale's case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient's family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law.

DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

"In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability". The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

"the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves".

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

" The Court also is `state' within the meaning of Article 12 (of the Constitution).".

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON

133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states : "Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose".

134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.

135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this Court observed :

"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.
That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure."

136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).

137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned.”

Entire Judgment can be read here.

Allotment of land to the trust formed by Sourav Ganguly family qaushed by Supreme Court

Justice A.K. Ganguly of Supreme Court in the recent case of Humanity & Anr Vs. State of West Bengal & Others reported at (2011) 6 SCC 125, quashed the allotment of land to the trust formed by Sourav Ganguly & Family for running ICSE affiliated School. The allotment was mainly quashed on the ground that much bigger land was allotted to the allottee without publishing fresh advertisement merely on the application of allottee for granting such bigger plot against the original land allotted earlier pursuant to advertisement for the allotment for the said land originally of small size. Supreme Court held that once Government has initiated process of advertisement, it cannot jettison it and allow a new plot to allottee without any advertisement and such action of allotting larger plot is arbitrary and violates Article 14 of the Constitution of India.

Further Supreme Court also held that the High Court cannot refuse to examine the challenge on the basis of what may happen in future. By doing so, the High Court refused to exercise jurisdiction which is vested in it.

Interestingly just before concluding part of the judgement Justice Ganguly said that, I make it clear that I am aware that the allottee is a cricketer of great repute and has led this country to victory in many tournaments, both in India and abroad. I have watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court.

Entire Judgement can be read here.

High Court cannot exercise power u/s 482 at interlocutory stage: Supreme Court

In the recent decision of Hon'ble Supreme Court in the case of Dharmatma Singh Vs. Harminder Singh & Ors., Justice A.K. Patnaik held that when Magistrate had not applied his mind to the merits of the reports filed under Section 173 CrPC, complaint filed by the private party can not be quashed by High Court exercising power under Section 482 of CrPC.

Supreme Court further held while interpreting Section 190 & 482 of CrPC that Section 482 of CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure ends of justice and such inherent power cannot be exercised in regards to the matter specifically covered by the the provisions of the Code and therefore it is the Magistrate, who has the power to take cognizance of any offence upon 'police report' of such facts which constitute an offence. Thus, when a police report is forwarded to the Magistrate either under sub-section (2) or under sub-section (8) of Section 173 CrPC, it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.

Supreme Court inter alia held as under:-

"9. A reading of provisions of sub-section (2) of Section 173, Cr.P.C. would show that as soon as the investigation is completed, the officer in charge of the police station is required to forward the police report to the Magistrate empowered to take cognizance of the offence stating inter alia whether an offence appears to have been committed and if so, by whom. Sub-section (8) of Section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the Magistrate a further report regarding such evidence and the provisions of sub-section (2) of Section 173,Cr.P.C., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). Thus, the report under sub-section (2) of Section 173 after the initial investigation as well as the further report under sub-section (8) of Section 173 after further investigation constitute "police report" and have to be forwarded to the Magistrate empowered to take cognizance of the offence. It will also be clear from Section 190(b) of the Cr.P.C. that it is the Magistrate, who has the power to take cognizance of any offence upon a "police report" of such facts which constitute an offence. Thus, when a police report is forwarded to the Magistrate either under sub-section (2) or under sub-section (8) of Section 173, Cr.P.C., it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.

10. It follows that where the police report forwarded to the Magistrate under Section 173 (2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under Section 173 (8) of the Cr.P.C.states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person. This interpretation has given by this Court in Abhinandan Jha & Ors. v. Dinesh Mishra [AIR 1968 SC 117 1967 Indlaw SC 445] to the provisions of Section 173 and Section 190 of the Criminal Procedure Code, 1898, which were the same as in the Criminal Procedure Code, 1973. In Abhinandan Jha 1967 Indlaw SC 445 (supra), para 15 at page 122 of the AIR this Court observed:

"... The police, after such investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."

11. After referring to the law laid down in Abhinandan Jha 1967 Indlaw SC 445(supra) this Court has further held in Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. [AIR 1996 SC 309 1995 Indlaw SC 1896] that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the Court that a case for taking cognizance was made out, the Court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for overruling the objections of the complainant be recorded by the Court and this was necessary because the Court while exercising power under Section 190,Cr.P.C. whether to take cognizance or not to take cognizance exercises judicial discretion.

12. In the facts of the present case, the police in its report submitted to the Judicial Magistrate, First Class, Ludhiana, on 02.02.2006 had filed two challans, one against the appellant, his father Mohan Singh and Bhupinder Singh stating that they had committed offences under Sections 452, 323, 326, 506 read with Section 34 of the IPC and the other challan against the respondent Nos.1 and 2 and some others stating that they had committed offences under Sections 342, 323, 324, 148 of the IPC. Pursuant to permission granted by the learned Magistrate on 27.07.2006 for further investigation, a further report has been made by the Superintendent of Police, City-II, Ludhiana, stating that respondent no.1 for his self-defence had caused injuries to the appellant and others and hence the cross-case against the respondent no.1 is required to be cancelled. This further report has to be forwarded to the learned Magistrate and as has been held by this Court in Abhinandan Jha 1967 Indlaw SC 445(supra) and Mrs. Rupan Deol Bajaj 1995 Indlaw SC 1896 (supra) it was for the learned Magistrate to apply judicial mind to the facts stated in the reports submitted under sub-sections (2) and (8) respectively of Section 173, Cr.P.C., and to form an opinion whether to take cognizance or not to take cognizance against the respondent no.1 after considering the objections, if any, of the complainant, namely, the appellant.

13. Section 482 of the Cr.P.C. saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has been held by this Court in R. P. Kapur v. State of Punjab [AIR 1960 SC 866 1960 Indlaw SC 471] that Section 561-A of the Criminal Procedure Code, 1898 (which corresponds to Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and therefore where the Magistrate has not applied his mind under Section 190 of theCr.P.C. to the merits of the reports and passed order, the High Court ought not to consider a request for quashing the proceedings. In the case of R. P. Kapur 1960 Indlaw SC 471 (supra) on 10.12.1958, M.L. Sethi lodged a First Information Report against R.P. Kapur and alleged that he and his mother-in-law had committed offences under Sections 420-109, 114 and 120B of theIndian Penal Code. R.P. Kapur moved the Punjab High Court under Section 561-A of the Code of Criminal Procedure for quashing the proceedings initiated by the First Information Report. When the petition of R.P. Kapur was pending in the High Court, the police report was submitted under Section 173,Cr.P.C. and the High Court held that no case had been made out for quashing the proceedings under Section 561-A of the Criminal Procedure Code, 1898 and dismissed the petition. R. P. Kapur carried an appeal by way of Special Leave to this Court and this Court dismissed the appeal for inter alia the following reasons:

" ... In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage..."

As we have found in the present case that learned Magistrate had not applied his mind to the merits of the reports filed under Section 173, Cr.P.C., we are of the considered opinion that the exercise of power by the High Court under Section 482, Cr.P.C., was at an interlocutory stage and was not warranted in the facts of this case.

14. In the result, the appeal is allowed and the impugned order dated 25.03.2008 is set aside. The police will forward the further report of the Superintendent of Police, City-II, Ludhiana, to the Magistrate concerned and the learned Magistrate will apply his mind to the police report already forwarded to him and the further report of further investigation forwarded to him and take a final decision in accordance with law after considering the objections, if any, of the appellant against the further report of further investigation."

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