Andhra Pradesh High Court - Amravati
Sri Chintakayala Ayyannapatrudu vs K.Mallikarhuna Rao on 9 November, 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
I.A.Nos.2 & 3 of 2022
In
Crl.P.No.8729 of 2022
Interlocutory Order:
The petitioners herein are the accused in Crime No.64 of 2022 of
CBID Police Station, Mangalagiri, for offences punishable under Sections
464, 467, 471, 474 read with Section 34 IPC. The facts, out of which the
present case arose, are as follows:
2. The petitioners had constructed a house in Sy.No.277 and
278/1 of Narsipatnam, Visakhapatnam District, after obtaining building
permission from the Narsipatnam Municipality on 19.02.2018.
3. On 19.06.2022, the compound wall of the petitioners' house
was demolished and a show cause notice under Section 7 of the A.P. Land
Encroachment Act, 1905, was served on the petitioners on the ground
that the petitioners had encroached Ac.0.02 cents of land and had
constructed the compound wall on the said encroached land. Challenging
the same, the petitioners filed W.P.No.16579 of 2022, in which, this Court
passed certain interim directions on 19.06.2022 in I.A.No.1 of 2022
staying further demolition of the compound wall. Thereafter, by another
order dated 02.06.2022 this Court permitted the petitioners to erect a
fencing in the place of the pre-existing compound wall.
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4. The petitioners had filed, in W.P.No. 16579 of 2022, a copy
of an NOC, dated 25.02.2019, given by the Executive Engineer of the
Water Resources Department, Visakhapatnam, certifying that there was
no objection from the Water Resources Department for construction of
residential building by petitioners 2 and 3 in Sy.Nos. in Sy.Nos.277/2 and
277/3 of Narsipatnam Municipality. A separate copy of the N.O.C., said to
have been attested on 26.02.2019, by the Assistant executive engineer,
was also filed as a material paper in the same writ petition.
5. On 30.09.2022, the said Executive Engineer, who is the
de facto complainant in the present complaint, had submitted a letter to
the Additional Director General of Police, Criminal Investigation
Department, A.P., contending that the NOC ostensibly, signed by him on
25.02.2019
was, in fact, a forgery and was not signed by him at all. The
letter also states that the attestation dated 26.02.2019 of one Sri Ruttala
Ramana Patrudu, Assistant Executive Engineer of the Department was not
affixed on 26.02.2019. The letter states that when asked about the
attestation, the de facto complainant was informed, by Sri Ramana
Patrudu, that the 1st petitioner had called him in July, 2022 and obtained a
back dated attestation of the NOC.
6. After receipt of the complaint, the Additional Director
General of Police, CBCID, by memo dated 30.09.2022 had directed an
enquiry to be conducted. Thereafter, one Sri V. Peddi Raju, the Inspector
of Police, to whom the enquiry had been entrusted, had filed a report,
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dated 02.11.2022, before the Additional Director General of Police, CID
Department. On the basis of this report, a complaint was registered as
Crime No.64 of 2022 in the C.I.D. Police Station, Amaravati, Mangalagiri,
on 02.11.2022, for the offences punishable under Sections 464, 467, 471,
474 read with Section 34 IPC and the petitioners 1 and 3 were arrested in
the early hours of 03.11.2022.
7. Aggrieved by the registration of the said complaint and the
subsequent arrest of the petitioners 1 and 3, the present criminal petition
was moved as a lunch motion before this Court on 03.11.2022. As the
hearing was inconclusive on 03.11.2022, the matter was adjourned to
04.11.2022. In the meanwhile, petitioners 1 and 3 were produced before
the Magistrate, who declined to remand the petitioners to judicial custody
on the ground that Section 467 IPC does not appear to be available to the
prosecution and that all other offences mentioned in the said complaint
were offences attracting punishment of less than 7 years imprisonment
due to which the petitioners would be entitled to notice under
Section 41-A Cr.P.C.
8. In view of the orders of the learned Magistrate, the
petitioners 1 and 3 had been released.
9. The matter was again heard on 04.11.2022, and extensive
arguments were advanced by Sri V.V. Sateesh, learned counsel appearing
for the petitioners and the learned Additional Advocate General appearing
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for Smt. Y. Siva Kalpana Reddy, learned Standing Counsel for CBCID, and
the learned Public Prosecutor.
10. The case of the petitioners, as set out by Sri V.V. Sateesh, is
as follows:
a) The petitioners had not committed any illegality nor fabricated or
forged any document, much less, the no objection certificate dated
25.02.2019 issued by the de facto complainant.
b) The complaint relates to fabrication of a document, which is
presently before this Court in W.P.No.16579 of 2022 and as such,
a complaint relating to the alleged fabrication or forgery of the
said document cannot be filed by the de facto complainant or
taken up by the investigating officer, as the same was barred by
Section 195 Cr.P.C.
c) The veracity of the NOC, filed before this Court, is the subject
matter of W.P.No.16579 of 2022 and in such circumstances, a
criminal investigation into the said matter would not be permissible
as it would prejudice the interest of the parties and the stand taken
by them in the writ petition. The judgment of the Hon'ble High
court in Rajeshbhai Mulibhai Patel and Ors., vs. State of
Gujarat and Anr.,1, is relied upon.
(2020) 3 SCC 794
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d) Section 467 I.P.C., was included primarily to ensure that the
petitioners are not given the benefit of Section 41-A Cr.P.C., and
to ensure that the petitioners are arrested on account of
applicable rivalry between the petitioners and ruling
establishment.
e) The entire exercise undertaken by the police authorities, under the
guise of a criminal complaint, is nothing but sheer harassment of
the petitioners on account of the political differences between the
petitioners and the ruling establishment.
f) Section 467 I.P.C., would apply if there is any allegation of
fabrication or forgery of a valuable security defined under
Section 30 IPC. The document in question is a NOC given by the
de facto complainant and the same does not answer the
description of valuable security as defined under Section 30 IPC.
g) A valuable security is a document creating a legal right. The
Hon'ble Supreme Court in Vodafone International Holdings BV
vs. Union of India and Anr.,2 had taken the view that a legal
right would be a right, which is enforceable by legal process. In the
present case, the question of enforcing the NOC would not arise
and as such there is no legal right created by the NOC. The
Commissioner of Narsipatnam Municipality had filed a counter
(2012) 6 SCC 613
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affidavit in W.P.No.16579 of 2022 stating, in paragraph No.6, that
the NOC issued by the Executive Officer was given only to
Sy.Nos.277/2 and 277/3 while encroachment of the petitioners is in
the existing irrigation canal falling in Sy.No.276. This would mean
that no rights of any nature had been created by the NOC given by
the de facto complainant.
h) The complaint of the de facto complainant reached the CBCID
authorities on 30.09.2022. In such circumstances, the question of
a preliminary enquiry does not arise and the F.I.R. ought to have
been registered. This procedure was not followed because the
CBCID authorities were inclined to keep such complaints available
to be used for arresting the petitioners herein.
i) Various complaints were being filed against the petitioners to
harass the petitioners and the petitioners had obtained protection
in all the cases filed against them. However, the petitioners
apprehended that complaints were being filed and kept in store by
the authorities without furnishing copies of the F.I.Rs, to the
petitioners due to which the petitioners apprehended that these
applications would be used from time to time to create false cases
against them and to arrest them and had raised this issue in 2nd
petitioner filed W.P.No.18449 of 2022. This writ petition was
disposed of on 01.07.2022 with certain directions.
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j) Thereafter, the 2nd petitioner had filed W.P.No.3488 of 2022,
challenging a notice issued to him under section 160 of Cr.P.C.,
for recording his statement in crime No. 14 of 2022 pending
before the CBCID police station. In this writ petition the 2 nd
petitioner had expressed his apprehension that he would be
arrested when he appears before the CBCID in compliance of the
above notice, on the basis of some compliant whose details had
not been given to the 2nd petitioner. This Court, on 31.10.2022,
had been informed that there is no further F.I.R., filed against the
petitioners except the cases, which were already within the
knowledge of the petitioner. However, the pendency of the
enquiry in the present complaint was not disclosed and the
complaint had been registered on 02.11.2022. Though the
authorities may have been adhering to the letter of the statement
made before this Court, the fact remains that they had definitely
not adhere to the spirit of the statement.
k) The allegation in the complaint is that the attestation, of the NOC,
dated 26.02.2019, was actually done in July, 2022 and backdated
to 26.02.2019. However, the attested copy of the NOC was filed
into this court, in W.P.No. 16579 of 2022 in June itself. This
makes the whole story of a backdated attestation highly
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improbable, requiring the complaint to be quashed in accordance
with the principle laid down in State of Haryana v. Bhajan Lal3.
l) Though the CBCID Police Station is recognised as a Police Station,
the Police Manual at Article 866-1 sets out the Crimes which can
be taken up by the CBCID Department, provided, the Additional
Director General of Police, C.I.D, or the Director General of Police
take a decision that a case falling in any one of the categories, set
out in Article-866-1, needs to be taken up for investigation by the
CBCID. The present case does not fall under any of the categories
given at Sl.No.A to Sl.No.2. The registration of the complaint and
investigation of the case by the CBCID Department is
impermissible.
m) In view of the circumstances, the prosecution of the petitioners is
a mala fide exercise and the same requires to be interdicted by
this Court. Reliance is placed upon the judgment of the Hon'ble
Supreme Court in the case of Arnab Manoranjan Goswami vs.f
State of Maharashtra and Ors.,4 to contend that this Court
while exercising the power under Section 482 Cr.P.C., is entitled to
direct release of the petitioners by way of interim bail and also
direct that no coercive steps shall be taken against the petitioners
apart from directing stay of further investigation in the matter.
1992 Supp (1) SCC 335
(2021) 2 SCC 427
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11. The learned Additional Advocate General, appearing in the
matter submits as follows:
a) The petitioners are being investigated on account of the offences
committed by them and not on account of any political rivalry or
political harassment.
b) About 13 cases have already been filed against the petitioners and
are under various stages of investigation apart from being the
subject matter of various proceedings before the Courts.
c) The CBCID authorities did not immediately register a case, and had
conducted an enquiry before taking any further steps in the matter.
This would clearly show that the investigating authorities had not
indulged in any witch hunting and had in fact bent backwards to
ensure that the case registered against the petitioners would not
amount to unwarranted prosecution.
d) The offence under Section 467 IPC is clearly made out as the NOC
forged in the name of the de facto complainant creates rights in
favour of the petitioners and would amount to a valuable security
as defined under Section 30 of IPC.
e) The investigation is still at the inception and cannot be interdicted
at the very beginning. The judgments of the Hon'ble Supreme
Court in Neeharika Infrastructure Pvt. Ltd., vs. State of
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Maharashtra and Ors.,5; Skoda Auto Volkswagen India
Private Limited vs. State of Uttar Pradesh and Ors., 6; and
Central Bureau of Investigation (CBI) and Anr., vs.
Thommandru Hannah Vijayalakshmi alias T.H.
Vijayalakshmi and anr.,7, are relied upon.
f) The bar under Section 195 Cr.P.C., would not be applicable. A
Constitution Bench of the Hon'ble Supreme Court, in Iqbal Singh
Marwah and Anr., vs. Meenakshi Marwah and Anr.,8 had held
that the bar under Section 195 Cr.P.C., would be available only
when the document is fabricated or forged, and while in the
custody of the Court and there would be no bar for conducting an
investigation into the commission of forgery and fabrication of a
document produced or given in evidence, in any Court, if such
forgery or fabrication had been committed prior to its production in
the Court. (Senior Manger (P & d), Riico Limited vs. State of
Rajasthan and Anr.,9 and Bandekar Brothers Private Limited
and Anr., vs. Prasad Vassudev Keni and Ors.,10.)
g) The meaning of "valuable security" as set out in the judgment of
the Hon'ble Supreme Court in Ishwarlal Girdharilal Parekh vs.
2021 SCC Online SC 315
2020 SCC Online SC 958
2021 SCC Online SC 923
(2005) 4 SCC 370
(2018) 1 SCC 79
(2020) 20 SCC 1
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Crl.P.No.8729 of 2022
State of Maharashtra and Ors.,11 would show that a document
such as the NOC filed by the petitioners before this Court would
amount to a valuable security.
h) The arrest of the petitioners 1 and 3 had been carried out as the
petitioners were indulging in various offences and non arrest of the
petitioners would only leave them free to commit further offences.
The conditions set out by the Hon'ble Supreme Court in Joginder
Kumar vs. State of U.P. and Ors.,12 and the judgment of the
Hon'ble Supreme Court in Gurubux Singh vs. State of U.P.,13,
have been met, in letter and spirit, and the arrest of the petitioners
cannot be faulted.
i) The Hon'ble Supreme Court in State of Telangana vs.
Managipet Alias Mangipet Sarveshwar Reddy14 (paragraphs
32 to 34) had taken the view that a preliminary enquiry, in terms of
Lalita Kumari vs. State of U.P.,15 is permissible and the enquiry
conducted from 30.09.2022 to 2.11.2022 is in line with this
principle and cannot be faulted.
Consideration of the Court:
AIR 1969 SC 40
(1994) 4 SCC 260
(2018) SCC Online SC 2895
(2019) 19 SCC 87
(2012) 4 SCC 1
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12. The judgments cited by both sides, in relation to the power
of this Court under Section 482 Cr.P.C., and the contours of exercise of
such power set out the settled position of law. The golden thread running
through all these judgments is the need for this Court to strike a balance
between the need to protect the liberty and rights of the persons under
investigation on one hand, and the need of the criminal justice system for
proper investigation into the allegations making out an offence against a
person on the other. The Courts have held that the investigation into
offences and consequent actions should not be thwarted by this Court,
exercising the power under Section 482 Cr.P.C., unless a clear case is
made out for exercising such power. It is also a well established principle
of law that no interim or final directions should be given by this Court,
unless this Court arrives at a finding that the case made out against the
person under investigation does not either require further investigation or
that certain safeguards need to be given to such persons, pending
investigation and consequent steps, including trial before the trial judge.
13. The Hon'ble Supreme Court, in Arnab Manoranjan
Goswami vs. State of Maharashtra and Ors., had held as follows:
45. Thereafter, this Court noted that "the High Court has
not referred to allegations made in the FIR or what has
come out in the investigation". While on the one hand, the
High Court declined in exercising its jurisdiction under
Section 482 to quash the proceedings, it nonetheless
directed the police not to arrest the appellants during the
pendency of the investigation. It was in this context that this
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Crl.P.No.8729 of 2022
Court observed that the High Court had, while dismissing the
applications under Section 482, passed orders that if the
accused surrenders before the trial Magistrate, he shall be
admitted to bail on such terms and conditions as it was
deemed fit and appropriate.
44. Between paras 11 and 15, this Court then evaluated the
nature of the jurisdiction under Section 482 CrPC or under
Article 226 of the Constitution for quashing an FIR and
observed : (Habib Jeelani case [State of Telangana v. Habib
Abdullah Jeelani, (2017) 2 SCC 779 : (2017) 2 SCC (Cri) 142]
, SCC pp. 787-89)
"11. Once an FIR is registered, the accused persons can
always approach the High Court under Section 482 CrPC or
under Article 226 of the Constitution for quashing of the FIR.
In Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] the two-Judge Bench after
referring to Hazari Lal Gupta v. Rameshwar Prasad [Hazari
Lal Gupta v. Rameshwar Prasad, (1972) 1 SCC 452 : 1972
SCC (Cri) 208] , Jehan Singh v. Delhi Admn. [Jehan Singh v.
Delhi Admn., (1974) 4 SCC 522 : 1974 SCC (Cri) 558] , Amar
Nath v. State of Haryana [Amar Nath v. State of Haryana,
(1977) 4 SCC 137 : 1977 SCC (Cri) 585] , Kurukshetra
University v. State of Haryana [Kurukshetra University v.
State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] ,
State of Bihar v. J.A.C. Saldanha [State of Bihar v. J.A.C.
Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272] , State of
W.B. v. Swapan Kumar Guha [State of W.B. v. Swapan
Kumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283] ,
Nagawwa v. V.S. Konjalgi [Nagawwa v. V.S. Konjalgi, (1976)
3 SCC 736 : 1976 SCC (Cri) 507] , Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988)
1 SCC 692 : 1988 SCC (Cri) 234] , State of Bihar v. Murad Ali
14 RRR,J
Crl.P.No.8729 of 2022
Khan [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 :
1989 SCC (Cri) 27] and some other authorities that had dealt
with the contours of exercise of inherent powers of the High
Court, thought it appropriate to mention certain category of
cases by way of illustration wherein the extraordinary power
under Article 226 of the Constitution or inherent power
under Section 482 CrPC could be exercised either to prevent
abuse of the process of any court or otherwise to secure the
ends of justice. The Court also observed that it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad cases
wherein such power should be exercised.
12. The illustrations given by the Court need to be
recapitulated : (Bhajan Lal case [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC pp.
378-79, para 102)
'(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
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(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the Act concerned (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the Act concerned,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fides and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.'
It is worthy to note that the Court has clarified that the said
parameters or guidelines are not exhaustive but only
illustrative. Nevertheless, it throws light on the
circumstances and situations where the Court's inherent
power can be exercised.
13. There can be no dispute over the proposition that
inherent power in a matter of quashment of FIR has to be
exercised sparingly and with caution and when and only
when such exercise is justified by the test specifically laid
down in the provision itself. There is no denial of the fact
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that the power under Section 482 CrPC is very wide but it
needs no special emphasis to state that conferment of wide
power requires the Court to be more cautious. It casts an
onerous and more diligent duty on the Court.
14. In this regard, it would be seemly to reproduce a
passage from Kurukshetra University [Kurukshetra University
v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613]
wherein Chandrachud, J. (as his Lordship then was) opined
thus : (SCC p. 451, para 2)
'2. It surprises us in the extreme that the High Court thought
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 FIR. 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. That statutory
power has to be exercised sparingly, with circumspection
and in the rarest of rare cases.'
15. We have referred to the said decisions only to stress
upon the issue, how the exercise of jurisdiction by the High
Court in a proceeding relating to quashment of FIR can be
justified. We repeat even at the cost of repetition that the
said power has to be exercised in a very sparing manner and
is not to be used to choke or smother the prosecution that is
legitimate. The surprise that was expressed almost four
decades ago in Kurukshetra University case [Kurukshetra
University v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC
(Cri) 613] compels us to observe that we are also surprised
by the impugned order [Vineet Narain v. Union of India,
(1998) 1 SCC 226 : 1998 SCC (Cri) 307] ."
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47. The above decision thus arose in a situation where the
High Court had declined to entertain a petition for quashing
an FIR under Section 482 CrPC. However, it nonetheless
directed the investigating agency not to arrest the accused
during the pendency of the investigation. This was held to
be impermissible by this Court. On the other hand, this Court
clarified that the High Court if it thinks fit, having regard to
the parameters for quashing and the self-restraint imposed
by law, has the jurisdiction to quash the investigation "and
may pass appropriate interim orders as thought apposite in
law". Clearly therefore, the High Court in the present case
has misdirected itself in declining to enquire prima facie on a
petition for quashing whether the parameters in the exercise
of that jurisdiction have been duly established and if so
whether a case for the grant of interim bail has been made
out. The settled principles which have been consistently
reiterated since the judgment of this Court in State of
Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] ("Bhajan Lal")
include a situation where the allegations made in the FIR or
the complaint, even if they are taken at their face value and
accepted in their entirety, do not prima facie constitute any
offence or make out a case against the accused. This legal
position was recently reiterated in a decision by a two-Judge
Bench of this Court in Kamal Shivaji Pokarnekar v. State of
Maharashtra [Kamal Shivaji Pokarnekar v. State of
Maharashtra, (2019) 14 SCC 350 : (2019) 4 SCC (Cri) 846] .
14. The Hon'ble Supreme Court had also taken the view that the
Court, exercising its jurisdiction under Section 482 Cr.P.C., should also
look at the allegations in the complaint and the facts and circumstances of
the complaint before exercising any further jurisdiction in the matter.
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15. In the present case, a prima facie, reading of the complaint
shows that all the ingredients necessary to make out an offence of
fabrication and forgery are contained in the complaint. The veracity of
those allegations would have to be ascertained through an investigation.
However, it is the case of the petitioners that the said complaint is barred
by the provisions of Section 195 Cr.P.C.; the facts alleged improbablise the
whole case of the prosecution; no case is made out under Section 467
I.P.C.; the facts surrounding the case show that it is an abuse of the
process of the Court, and the entire prosecution has been taken up on
account of political differences.
16. The complaint is said to have been filed by the de facto
complainant before the Additional Director General of Police, CBCID, on
30.09.2022. It is not clear why the complaint was filed directly before the
Additional Director General of Police, CBCID or why the matter was taken
up for investigation by the CBCID police station. This complaint was
referred to an officer working in the CBCID department for conducting an
enquiry. The Memo, which has been placed before this Court, issued by
the Director General of Police, CBCID, on 30.09.2022, referring the case
for enquiry, does not contain any reasons as to why the matter was
referred for an enquiry. The report of the officer to whom the enquiry was
entrusted, which has been filed before this Court, also does not show as
to why the enquiry was ordered nor the information obtained by the said
officer, which was required to make out an offence against the petitioners.
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17. The learned Additional Advocate General contends that this
enquiry was required in view of the directions of the Hon'ble Supreme
Court in Lalita Kumari Vs. State of U.P., and followed in State of
Telangana vs. Managipet Alias Mangipet Sarveshwar Reddy.
These two judgments of the Hon'ble Supreme Court had only laid out the
principle that a preliminary enquiry is permissible and required, before
registration of F.I.R., only in certain special circumstances.
18. The following paragraphs in State of Telangana vs.
Managipet Alias Mangipet Sarveshwar Reddy, make it clear.
27. Coming to the appeal filed by the accused officer, Mr.
Guru Krishna Kumar, learned Senior Counsel vehemently
argued that a preliminary inquiry before the registration of a
crime is mandatory. Reference was made to a judgment in
Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P.,
(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] as well as the
judgment in State v. M.R. Hiremath [State v. M.R. Hiremath,
(2019) 7 SCC 515 : (2019) 3 SCC (Cri) 109 : (2019) 2 SCC
(L&S) 380] .
28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] , the Court has laid down
the cases in which a preliminary inquiry is warranted, more
so, to avoid an abuse of the process of law rather than
vesting any right in favour of an accused. Herein, the
argument made was that if a police officer is doubtful about
the veracity of an accusation, he has to conduct a
preliminary inquiry and that in certain appropriate cases, it
would be proper for such officer, on the receipt of a
complaint of a cognizable offence, to satisfy himself that
prima facie, the allegations levelled against the accused in
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the complaint are credible. It was thus held as under: (SCC
pp. 49-50, para 83)
"83. In terms of the language used in Section 154 of the
Code, the police is duty-bound to proceed to conduct
investigation into a cognizable offence even without
receiving information (i.e. FIR) about commission of such an
offence, if the officer-in-charge of the police station
otherwise suspects the commission of such an offence. The
legislative intent is therefore quite clear i.e. to ensure that
every cognizable offence is promptly investigated in
accordance with law. This being the legal position, there is
no reason that there should be any discretion or option left
with the police to register or not to register an FIR when
information is given about the commission of a cognizable
offence. Every cognizable offence must be investigated
promptly in accordance with law and all information provided
under Section 154 of the Code about the commission of a
cognizable offence must be registered as an FIR so as to
initiate an offence. The requirement of Section 154 of the
Code is only that the report must disclose the commission of
a cognizable offence and that is sufficient to set the
investigating machinery into action."
29. The Court concluded that the registration of an FIR is
mandatory under Section 154 of the Code if the information
discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation. This
Court held as under : (SCC p. 160, para 120)
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section
154 of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible
in such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry,
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Crl.P.No.8729 of 2022
a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a
copy of the entry of such closure must be supplied to the
first informant forthwith and not later than one week. It
must disclose reasons in brief for closing the complaint and
not proceeding further.
120.4. The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be
taken against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases."
30. It must be pointed out that this Court has not held that
a preliminary inquiry is a must in all cases. A preliminary
enquiry may be conducted pertaining to matrimonial
disputes/family disputes, commercial offences, medical
negligence cases, corruption cases, etc. The judgment of
this Court in Lalita Kumari [Lalita Kumari v. State of U.P.,
(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] does not state that
proceedings cannot be initiated against an accused without
conducting a preliminary inquiry.
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Crl.P.No.8729 of 2022
19. The necessity of such an enquiry and the consequences of
conduct of such an enquiry on the subsequent investigation, cannot be
gone into by this Court at this stage, as all the facts are not before this
Court.
20. The petitioners contend that Section 195 Cr.P.C., is a bar
against the investigation on the ground that the document, which is the
subject matter of investigation is already before the Court and no criminal
investigation is permissible unless there is a complaint in terms of Section
195 Cr.P.C. This contention, in view of the judgment of the Hon'ble
Supreme Court in Iqbal Singh Marwah and Anr., vs. Meenakshi
Marwah and Anr., cited by the learned Additional Advocate General,
would have to be rejected.
21. The petitioners contend that the allegations in the complaint
itself improbablise the offence. The complaint states that the attestation
dated 26.02.2019 was actually done in July 2019 and back dated to
26.02.2019. This allegation is improbablised by the fact that the said
attested copy of the NOC was filed into this Court in June itself. The
learned Additional Advocate General has placed the case diary of this case
before this Court. A perusal of the statements of the witnesses shows that
there is a variation, between what the witnesses are saying in their
statements regarding the time when the attestation is said to have been
back dated, with the allegation in the complaint. This Court is refraining
23 RRR,J
Crl.P.No.8729 of 2022
from taking a view on this discrepancy as the investigation is still going
on. However, this discrepancy would definitely be a significant issue for
the case.
22. The Petitioners contend that a criminal investigation, into
documents which are the subject matter of a civil dispute, should be
deferred till the civil proceedings are closed. The Hon'ble Supreme Court
in Rajeshbhai Mulibhai Patel and Ors., vs. State of Gujarat and
Anr., in paragraph 20, had held as follows:
"As rightly contended by the learned counsel for the
appellants, in Summary Suit No.105 of 2015, Issue 5 has
been framed by the Court "whether the defendant proved
that the plaintiff has fabricated the forged signature illegally
and created forged receipts". When the issue as to the
genuineness of the receipts is pending consideration in the
civil suit, in our view, the FIR ought not to have been
allowed to continue as it would prejudice the interest of the
parties and the stand taken by them in the civil suit."
23. However, it must be noticed that though allegations of
fabrication or forgery are common to both cases, the facts of the case
before the Hon'ble Supreme Court are slightly different. In that case, there
was summary suit filed for recovery of money on the basis of the receipts
and pro-notes and a criminal case filed on the ground that the said
documents are fabricated and forged. In the present case, prima facie, the
genuineness or otherwise of the NOC is not relevant to W.P.No.16579 of
2022.
24 RRR,J
Crl.P.No.8729 of 2022
24. The petitioners contend that the NOC issued by the de facto
complainant is not a "valuable security" whose forgery would attract the
provisions of Section 467 I.P.C.
25. A "valuable security" is defined in Section 30 I.P.C., in the
following manner.
30. "Valuable security". --The words "valuable security"
denote a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred,
restricted, extinguished or released, or where by any person
acknowledges that he lies under legal liability, or has not a
certain legal right.
26. The document, which is said to have been forged, is an NOC
issued by the De Facto complainant, who is an Executive Engineer of the
Water Resources Department, stating that there was no objection to the
petitioners constructing a house in Sy.Nos.277/2 and 277/3.
27. The petitioners had sought building permission to construct
a house in Sy.Nos.277/2 and 277/3. The said land is said to have bordered
on Irrigation canal in Sy.No.276. The NOC issued by the de facto
complainant only states that an NOC was being given for construction in
Sy.Nos.277/2 and 277/3. A reading of the said NOC does not in any
manner show that there is a creation of any right to the petitioners to
construct in Sy.No.276. Equally, the NOC issued by the de facto
complainant, prima facie, would not create any right to the petitioners to
construct anything in the land in Sy.Nos. 277/2 and 277/3 as such
25 RRR,J
Crl.P.No.8729 of 2022
constructions can be carried out only upon a building permission being
given by the local body.
28. Further, as pointed out by the learned counsel for the
petitioner, the Hon'ble Supreme Court, in Vodafone International
Holdings BV vs. Union of India and Anr., had taken the view that a
right which is enforceable by a legal process alone will be a legal right. In
the present case, the petitioners could not have constructed their house in
Sy.Nos.277/2 and 277/3 on the basis of the NOC given by the de facto
complainant nor could they even enforce a right to construct, on the basis
of the NOC given by the de facto complainant.
29. In the circumstances, there is a prima facie case in favour of
the petitioners to hold that the NOC issued by the de facto complainant, is
not a valuable security coming within the definition of Section 30 IPC., and
consequently, a case under Section 467 IPC, is prima facie, not available
against the petitioners.
30. As this is only a prima facie view being taken by this Court, it
would be appropriate to dispose of these applications permitting further
investigation into the crime, without applying the provisions of Section 467
IPC., at this stage. Consequently, the investigation would have to be
conducted in accordance with the guidelines laid down by the Hon'ble
Supreme court in ARNESH KUMAR VS. STATE OF BIHAR and the
petitioners would be entitled to the benefit of a notice under section 41 A
of Cr.P.C. The respondents can always approach this Court, for further
26 RRR,J
Crl.P.No.8729 of 2022
directions in this regard, provided they are able to demonstrate that the
NOC said to have been issued by the de facto complainant answers the
description of a valuable security. Similarly, the petitioners could also
approach this court in the event of any further developments in the case.
31. With the above directions, I.A. Nos. 2 and 3 of 2022 are
disposed of.
_________________________
R. RAGHUNANDAN RAO, J.
9th November, 2022
Js.
27 RRR,J
Crl.P.No.8729 of 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
I.A.Nos.2 and 3 of 2022
in
Crl.P.No.8729 of 2022
9th November, 2022
Js.
