Mahendra Pratap Verma vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 14532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 11
 

 
Case :- APPLICATION U/S 482 No. - 7234 of 2022
 

 
Applicant :- Mahendra Pratap Verma
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home And Others
 
Counsel for Applicant :- R.B.S. Rathaur
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri R.B.S. Rathaur, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been moved by the applicant with the prayer to quash the order dated 26.09.2022 passed by the Chief Judicial Magistrate, Sultanpur in C.N.R. No. UPST040126852022 (Smt. Sumitra Vs. Mahendra Pratap Verma & Others) so far as it relates to the applicant, whereby a direction was given by the Chief Judicial Magistrate, Sultanpur for registration of the F.I.R. and investigation of the same.

Before proceeding to appreciate the facts as well as submissions made by learned counsel for the applicant, it would be useful to state that on 13.10.2022, this Court had directed to learned A.G.A. to procure complete instructions in the matter pertaining to the fact as to whether in pursuance of the order of the Chief Judicial Magistrate, Sultanpur dated 26.09.2022, F.I.R. has been registered and today, learned A.G.A. has placed before this Court a report of the concerned police station along with chick F.I.R. of the Case Crime No.349 of 2022 informing that in compliance of the order of the Chief Judicial Magistrate, Sultanpur, an F.I.R. has already been registered.

Learned counsel for the applicant submits that trial court has committed manifest illegality in passing the impugned order dated 26.09.2022 as the Chief Judicial Magistrate without obtaining sanction was not having any authority to pass such order.

It is further submitted that it is the duty of the magistrate at the time of making any direction for investigation of the case to appreciate the facts in order to assess as to whether the matter requires investigation at all and having regard to the reliability of the facts and order of registration and investigation of the F.I.R. could only be passed after subjective satisfaction.

It is also submitted that the instant applicant against whom a direction has been given to lodge F.I.R. and to investigate the same is an Excise Inspector and had remained exemplary throughout his career and no proceedings of any kind has been initiated against him and on the persuasion of some liquor 'mafias', the application under Section 156(3) was moved by the informant/opposite party no.2/complainant. Having regard to all the facts and circumstances of the case, the impugned order suffers from manifest illegality and is liable to be set aside.

Learned A.G.A. at the out set submits that since an F.I.R. in compliance of the order of the magistrate has already been registered on 13.10.2022 at Police Station Jaisinghpur, the instant application under Section 482 Cr.P.C. has become infructuous and the petition is liable to be dismissed as such.

It is also submitted that at the stage of taking decision to investigate the case, truthfulness of the allegations is not required to be assessed as by ordering investigation under Section 156(3) Cr.P.C., the magistrate is doing nothing, but is remanding the police authorities of their duty to investigate a cognizable offence and the applicant could not feel aggrieved by the same as the truth of the incident may emerge during the course of investigation.

In rebuttal, learned counsel for the applicant submits that even if F.I.R. in compliance of the order of the magistrate has been registered, the same will not oust the jurisdiction of this Court and has placed reliance on the State of Punjab Vs. Devinder Pal Singh Bhullar & others; (2011) 14 SCC 770 specially on para no.108 to 113, Ajay Kumar Vs. State of Uttarakhand; (2021) 4 SCC 301, Anil Kumar and others Vs. M.K. Aiyappa and another; 2013 (10) SCC 705, Smt. Priyanka Srivastava Vs. State of U.P.; AIR 2015 SC 1758 and Rahitashav Kumar Vs. State of U.P. and another; 2018 (10) ADJ 143 (DB).

Having heard learned counsel for the parties and having perused the record, the facts are not in dispute as it is admitted to the parties that in pursuance of the order passed by the Chief Judicial Magistrate, Sultanpur, an F.I.R. has already been lodged at concerned police station.

Now the question would be as to whether despite registration of the F.I.R., the proceedings under Section 482 Cr.P.C. is available to the instant applicant. It is worthwhile to emphasize that this petition had come before this Court on 13.10.2022 and it was on the same day i.e. 13.10.2022 at 15.24 hours, F.I.R. was lodged at Police Station Jaisinghpur, District Sultanpur. It is also not in dispute that allegations as contained in the application moved under Section 156(3) Cr.P.C. demonstrates commission of cognizable offence.

Coming to the submission made by learned counsel for the applicant that the magistrate has committed illegality in ordering for registration of the F.I.R. and investigation without obtaining sanction in this regard. Learned counsel for the applicant has relied on Anil Kumar (supra), wherein it is opined by Hon'ble Supreme Court that the order under Section 156 (3) Cr.P.C. could not be made against a public servant without there being any sanction obtained from the appropriate authority. In the considered opinion of this Court, there is difference in factual matrix so far as the case relied on by learned counsel for the applicant to the instant case is concerned. The allegation against the applicant in the instant case is pertaining to entering the house of the opposite party no.2 and to have taken away jewelry, cash of Rs.50,000/- and other valuable items from the house of the opposite party no.2/informant, thus by any stretch of imagination, the act, which has been alleged in the application moved under Section 156(3) Cr.P.C., could not termed as an act of committing in the discharge of official duty of the applicant. Thus, in the considered opinion of this Court, even for cognizance, there is no requirement for obtaining sanction under Section 197 Cr.P.C., therefore, the law which has been relied on by the applicant is of no benefit to him.

Now coming to the second leg of submission made by learned counsel for the applicant with regard to the fact that in spite of registration of the F.I.R. in compliance of the order of the Chief Judicial Magistrate, Sultanpur, application under Section 482 Cr.P.C. is maintainable. In this connection, learned counsel for the applicant has relied on State of Punjab Vs. Devinder Pal Singh Bhullar (supra), Ajay Kumar (supra), and Rahitashav Kumar (supra)

A Full Bench of this Court in Father Thomas v. State of U.P., MANU/UP/2356/2010 : 2011(1) ADJ 333 (FB). has formulated following three questions :

"A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) CrPC directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued;

B. Whether an order made under Section 156(3) CrPC is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973; and

C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others, 2000 (41) ACC 435, that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an FIR registered on the basis of the order will be maintainable, is correct."

The Full Bench on each of these three questions held as under:

"(A) At the pre-cognizance stage when only a direction has been issued by the Magistrate under Section 156(3) to investigate, a prospective accused has no locus standi to challenge a direction for investigation of a cognizable case before cognizance or the issuance of process;

(B) An order under Section 156(3) passed by a Magistrate directing a police officer to investigate a cognizable case is not an order which impinges on the valuable rights of the party. An order by the Magistrate for investigation is an incidental step in aid of investigation and trial and is interlocutory in nature, similar to orders granting bail, calling for records, issuing search warrants, summoning witnesses and other like matters which do not infringe upon a valuable right of a prospective accused and is, hence, not amenable to a challenge in a criminal revision in view of the bar contained in Section 397(2). The bar under Section 397(2) to the entertaining of a criminal revision cannot be circumvented by moving an application under Section 482; and

(C) An order made under Section 156(3) is an interlocutory order and the remedy of a revision against such an order is barred under sub-section (2) of Section 397. The decision in Ajai Malivya's case was held not to lay down the correct position in law."

(Emphasis mine)

A Full Bench judgment of this court in Ramlal Yadava & others vs. state of U.P. & others. 1989 SCC online all 73 has held as under :

"4. The power of the police to investigate a cognizable offence without any interference by this Court in the exercise of its inherent powers has been considered in a number of decisions of the Privy Council and the Supreme Court. In the case of Emperor v. Khwaja Nazir Ahmad AIR 1945 P.C. 18, it was held:

"just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their providence and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an excercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary not overlaping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under section 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that section 561-A has given increased powers to the court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code, and that no inherent power has survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.'

5. In the case of State of West Bengal v. S.N. Basak AIR 1968 S.C. 447 it was held:

"At the time the respondent filed the petition in the High Court only a written report was made to the police by the Sub-Inspector of Police Enforcement Branch and on the basis of that report a First Information Report was recorded by the Officer-in-charge of the Police Station and investigation had started. There was no case pending at the time excepting that the respondent had appeared before the court, had surrendered and had been admitted to bail. The powers of investigation into cognizable offences are contained in Chapter XVI of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interferred with by the exercise of power under section 439 or under the inherent power of the court under section 561-A of the Criminal Procedure Code."

6. And the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad (supra) was approved.

7. In the case of S.N. Sharma v. Bipen Kumar Tewari (AIR 1970 SC. 786) the decision of the Privy council in the case of Emperor v. Khawaja Nazir Ahmad (supra) was again approved and it was held'

"This interpretation to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary."

8. In the case of Hazari Lal Gupta v. Rameshwar Prasad (AIR 1972 SC. 484) it was held;

"The inherent power of the High Court under section 561-A of the Criminal Procedure Code has been considered by this Court in R.P. Kapoor v. State of Punjab, (1963) 3 SCR 388 : AIR 1960 SC, 865) and State of West Bengal v. S.N. Basak (1963 (2) SCR 52. AIR 1963 SC 447) In exercising jurisdiction under Section 561-A of the Criminal Procedure Code the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is "reliable or not." Where again, inevestigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code."

9. In the case of Jehan Singh v. Delhi Administration (AIR 1974 SC 1146) after referring to the case of State of West Bengal v. S.N. Basak (supra) it was held:

"Here also, no police challan or charge-sheet against the accused had been laid in court, when the petitions under section 561-A were filed. The impugned proceedings were those which were being conducted in the course of police investigation. Prima facie, therefore, the rule of Basak's case would be attracted."

10. In the case of Kurukshetra University v. State of Haryana (AIR 1977 SC 2229.) it was held:

"It surprised us in the extreme that the Hight Court though that in the exercise of its inherent powers under section 482 of the Code of Criminal Procedure it could quash a first information report. The Police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the F.I.R. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."

11. In the case of State of Bihar v. J.A.C Saldanna (1980 ACC 279 (SC) it was held,

"There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive though the police department, the superintendence over which vests in the state Government. The executive which is charged with a duty to keep vigilence over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in section 173 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate."

12. In the case of State of West Bengal v. Sampat Lal (1985 (22) ACC 206 (S.C.). it was held;-

"The next aspect to be considered is whether it is open to the court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the court into police investigation has not been approved."

13. And the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad (supra) and the decision of the Supreme Court in the case of S.N. Sharma v. Bipen Kumas Tewari (supra), and State of Bihar v. J.A.C. Saldana (supra) were approved.

14. It is thus settled law that the power of the police to investigate into a report which discloses the commission of a cognizable offence is unfettered and cannot be interfered with by this Court in exercise of its inherent powers under Section 482 Cr. P C.

".....In such cases 19. The position which emerges from these decisions and the other decisions, which are discussed by Brother A.N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmad will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence, the court would be justified in quashing the investigation on the basis of the information as laid down or received."

20. Thus if the first information report does not disclose the commission of an offence the investigation on the basis of such a report is liable to be quashed under Article 226 of the Constitution and not in the exercise of the inherent powers of the High Court under Section 482 Cr.P.C. It may be mentioned that Section 491 Cr.P.C., 1898 has been repealed by the Code of Criminal Procedure, 1973.

33. In the case of Puttan Singh v. State of U.P. (supra) it was held:

"The first information report lodged by Sheo Nath Singh discloses the commission of a cognizable offence and also the complicity of the applicant in it. The Police thus has statutory power under Section 156 Cr.P.C. to investigate the case registered on the basis of the aforesaid first information report without any interference by this Court in the exercise of its inherent powers.......

34. This Court, therefore, has no jurisdiction to direct a police officer not to arrest the applicant during the pendency of the investigation of the case registered on the basis of the First Information Report lodged by Sheo Noth Singh against the applicant and others which disclosed the commission of a cognizable offence in the exercise of its inherent powers under Section 482 Cr.P.C."

35. In our opinion the case of Puttan Shingh v. State of U.P. (supra) was correctly decided.

i. For the reasons given above our answer to the first question referred to us is in the negative.

ii. Our answer to the second question referred to us is that the High Court has no inherent power under Section 482 Cr.P.C. to interfere with the investigation by the police. The High Court has also no inherent power under Section 482 Cr.P.C. to stay the arrest of an accused during investigation. The decision by the Full Bench in the case of Prashant Gaur v. Stato of U.P. (supra) does not lay down correct law and is overruled.

iii. Our answer to the third question referred to us is that the decision in the case of Puttan Singh v. State of U.P. (supra) is correct.

36. Let the record of the cases be placed before the learned Single Judge with our answers to the question referred to us. "

The above placed legal position would clearly demonstrates that the jurisdiction under Section 482 Cr.P.C. would not be available to the applicant when the F.I.R. has been lodged in compliance of the order of the Chief Judicial Magistrate, Sultanpur and the remedy lies of moving a writ petition, which is to be taken cognizance by a Division Bench of this Court as per current roster. Thus, instant application/petition filed under Section 482 Cr.P.C. is not maintainable and the same is dismissed as such.

Order Date :- 20.10.2022

Anupam/Praveen