Allahabad High Court
Saurabh Mukund vs State Of U.P. And 4 Others on 30 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:98961-DB
Reserved on 10.5.2024
Delivered on 30.5.2024
Case :- CRIMINAL MISC. WRIT PETITION No. - 53 of 2024
Petitioner :- Saurabh Mukund
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Indra Bhan Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Indra Bhan Yadav, learned counsel for the petitioner; learned A.G.A. for the State-respondents and perused the material on record.
2. The writ petition has been filed praying for writ, order or direction in the nature of mandamus commanding/directing the respondent no.2 (Director General of Police, U.P. at Lucknow) and respondent No.3 (Superintendent of Police, Special Task Force, Gautam Buddh Nagar) to retrain the respondent no.4 (Inspector, Special Task Force, Gautam Buddh Nagar) for making harassment of petitioner.
3. On 25.1.2024 the following order was passed by this Court:-
"1. Heard learned counsel for the petitioner and Shri G.P. Singh, learned AGA-1 for State respondents.
2. Present writ petition has been preferred for a direction to respondent no.4-Inspector, Special Task Force, Gautam Budh Nagar not to harass the petitioner on the basis of alleged complaint of respondent no.5.
3. On the matter being taken up today, learned AGA-I has produced the detailed instructions, which are taken on record.
4. Learned counsel for the petitioner has submitted that the impugned action of respondent no.4 is not justified as per the dictum of High Court of Delhi dated 10.6.2022 in W.P. (CRL) 611/2022 (Kulvinder Singh Kohli v. State of NCT of Delhi & Ors.). Much emphasis has been given on para 26 of the said judgment, wherein it is observed that without registration of FIR an investigation cannot be said to have been initiated. The Police Officer has to act in accordance with the provisions of CrPC and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate.
5. On the request of learned AGA-I, put up this matter as fresh on 31.1.2024. "
4. Learned AGA has filed counter affidavit on behalf the respondents. It has been stated in the counter affidavit that respondent no.5, Naved Ahmad, has made a complaint to the Additional Superintendent of Police (S.T.F.), Field Unit, Gautam Budh Nagar, in regard to demand of his invested amount by the man of the gang of gangster, Hazi Iqbal, who had given threat to kill him and his family members. It has been alleged that respondent no.5 is running real estate business in Noida. In the year 2014, Mohd. Javed, Vinod Kumar and Saurabh Mukund, came to his office and entered into agreement for purchase of land of Rs.10 crores, which was not honoured. A team of S.T.F. was constitute for taking action against Mafia, Hazi Iqbal and his gang. In the complaint, it was stated that in the account of the company of the petitioner, namely, M/s Enchant Infrastructure Pvt. Ltd., between 01.12.2013 to 04.3.2014, Rs.70 crores was invested by company of respondent no.5, but the company of petitioner could not begin the construction work. Saurabh Mukund was found having 5% share in the aforesaid company and therefore he is being called for conducting the inquiry into allegations made by respondent no.5.
5. After hearing rival contentions, this Court finds that there is no averment in the counter affidavit that any FIR has been lodged against the petitioner as yet there is no FIR registered against the petitioner. Before proceeding further a look Section 91 Cr.P.C. appears to be necessary, which is quoted below:-
"Section 91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed--
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
6. A perusal of Section 91 Cr.P.C. shows that any Court or any officer in charge of a police station has power to direct production of any document or other things necessary for the purposes of any investigation, inquiry, trial or other proceeding under this Code before such Court or officer. The Police officer has been vested with such powers. A perusal of the notice issued by respondent no.4, under Section 91 Cr.P.C. dated 12.9.2023 shows that he has received a complaint from Naved Ahmad against the company of gangster, Hazi Iqbal and the petitioner is director in the aforesaid company. Statement of petitioner is required to be recorded and hence the petitioner was called for getting statement recorded and was directed to be appear before the respondent no.4 with all the documents of the company. The petitioner claims that he has resigned from the company in the year 2011 and hence he sent a reply in this regard. On 20.11.2023 a notice under Sections 91/160 Cr.P.C. has been issued against the petitioner. This Court finds that while issuing notice under Section 160 Cr.P.C., the police officer should have a case registered against the accused and only during investigation he may require his attendance before him. In the present case, it is clear from the counter affidavit, that there is no case registered against the petitioner as yet. There is no investigation being carried out as per Section 157 Cr.P.C. Reliance of the learned counsel for the petitioner in this regard on the judgement of Hon'ble High Court of Delhi in the case of Kulvinder Singh Kohli Vs. State of NCT of Delhi and other, W.P.(Crl.) 611/2022 dated 10.6.2022 is well founded. However keeping in view of the judgement of Apex Court in the case of Lalita Kumar Vs. Govt. of U.P. AIR 2014 SC 187, this Court finds that respondent no.4 can conduct preliminary inquiry as per paragraph No.120.6 of judgement of Lalita Kumar (Supra) and therefore notice as per Section 91 Cr.P.C. cannot be faulted with but the composite notice dated 20.11.2022, notice under Section 91/160 Cr.P.C. cannot be sustained.
7. This writ petition is disposed of with the direction that petitioner will comply notice under Section 91 Cr.P.C. dated 12th September, 2023 issued by respondent no.4 for getting his statement recorded and will produce documents in his possession proving that he has resigned from company, namely, M/s Enchant Infrastructure Pvt. Ltd. in the year 2011 and since there is no FIR registered against him, he shall not be arrested by the respondent no.4. The petitioner will appear before the respondent no.4 within two weeks alongwith certified copy of this order and cooperate with inquiry being conducted by respondent no.4.
Order Date :- 30.5.2024
Ruchi Agrahari
(Surendra Singh-I,J.) (Siddharth, J.)
