Bombay High Court
2] Vinay Jindal vs State Of Maharashtra on 14 October, 2013
Bench: S.C. Dharmadhikari, G.S. Patel
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.196 OF 2013
1] Mrs.Shalu Agarwal
Aged 35, 2881, Gurdev Nagar,
Near LIC Building, Ludhiana,
Punjab
2] Vinay Jindal
age 44, 2881 Gurdev Nagar,
Near LIC Building, Ludhiana,
Punjab
3] Jogesh Jindal,
Aged 45, 2881 Gurdev Nagar,
Near LIC Building, Ludhiana,
Punjab .. Petitioners
Versus
1. State of maharashtra,
Through Inspector of Police,
Juhu Police Station,
Juhu, Mumbai 400 049
2] Mrs.Sunita S. Kumar,
2nd floor, Sagar Sukshriti
Building, N.S.Road No.5
Juhu, Mumbai 400 049 .. Respondents
WITH
WRIT PETITION NO.1495 OF 2013
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Arvind Puri and Ors. .. Petitioners
Versus
State of Maharashtra & Anr. .. Respondents
WITH
WRIT PETITION NO.1209 OF 2013
Dr.Harbhajan Singh Naghi @ Dr.Negi .. Petitioner
Versus
State of Maharashtra & Anr. .. Respondents
Mr.O.P.Pandey i/b. Mr.Madhusudan Pareek for Petitioner in
W.P.1495 of 2013.
Mr.M.S.Mohite, Amit Jajoo, T.R.Yadav with Mr.Rishabha
Agrawal for petitioners in W.P.196 of 2013.
None for the petitioner in W.P.1209 of 2013.
Mr.K.V.Saste, APP for State in all petitions
Mr.S.G.Deshmukh with R.D.Suryawanshi for respondent
No.2 in W.P.1495 of 2013 and W.P.196 of 2013 and
W.P.1209 of 2013.
CORAM : S.C.DHARMADHIKARI
AND
G.S.PATEL, JJ.
Judgement Reserved on : 29th August 2013.
Judgement Pronounced on : 14th October 2013.
ORAL JUDGEMENT: (Per Dharmadhikari, J)
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1] Rule. Respondents waive service. By consent, Rule
made returnable forthwith.
2] The prayer in the first petition under Article 226 of the
Constitution of India is to call for the records and
proceedings pertaining to an order dated 9th October 2012
passed in C.C.No.410/SW/2012 filed by the respondent
No.2 and the subsequent F.I.R. No.311 of 2012 registered
by the respondent No.1 and thereafter quash and set aside
the order and F.I.R. No.311 of 2012.
3] The three petitioners before us are the original
accused Nos. 1 to 3. The first respondent is Inspector of
Police, Juhu Police Station. The second respondent is
original informer/ complainant. A complaint was lodged by
the second respondent in the Court of Metropolitan
Magistrate, 10th Court, Andheri, Mumbai alleging that the
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petitioner No.1 is married to the son of respondent No.2 on
2nd October 2006. The petitioner Nos. 2 and 3 are the
brothers of petitioner No.1. All of them reside in Ludhiana in
the State of Punjab.
4] The allegations in the F.I.R. which is sought to be
quashed is that the petitioners before us conspired with the
Samrala Police Station, District Khanna, Punjab and filed a
false complaint against respondent No.2 original
complainant. The entire complaint was a result of the
forgery and other serious acts on the part of not only the
present petitioners but also the police officials in the State of
Punjab. These police officials and the present petitioners
connived and colluded in filing and registering a false
complaint and proceedings in accordance therewith. They
proceeded in such a manner as to apprehend the second
respondent in Mumbai. The entire false case resulted in the
Punjab police visiting second respondent's house and trying
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to arrest her. The complainant's case is that her son
Gautam Kumar got married to petitioner No.1 in Mumbai on
2nd October 2006 as per Hindu rites and customs. From the
wedlock a son by name Arnav was born. It is further
submitted by original complainant that after the marriage of
Gautam Kumar and petitioner No.1, the petitioner No.1
started residing in the joint family consisting complainant's
father in law, husband, complainant herself and her
daughter. Soon after the marriage, the petitioner No.1
started quarreling, arguing and cursing the complainant and
her family members over any minor issues which ultimately
resulted in to a separation of the family. The respondent
No.2 states that Gautam Kumar is her only son who has
been blessed by her grandson Arnav and, therefore, it was
difficult for her and her husband to ask their son to stay
separately. However, in the interest of petitioner No.1,
grandson Arnav and respondent No.2's son Gautam Kumar
and in order to save the married life of Gautam Kumar,
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respondent No.2's family allowed Gautam Kumar, petitioner
No.1 and their son Arnav to stay separately and accordingly
for about two years, Gautam Kumar along with petitioner
No.1 and their son Arnav stayed in a separate residence.
The respondent No.2 states that however, even after
residing separately, the petitioner No.1 was not satisfied and
she did not spare a single moment to harass complainant's
son Gautam Kumar.
5] It is further stated by the respondent No.2 that in this
back ground of the matter in the year 2009 marriage of her
daughter Ms.Aditi Kumar was scheduled which was to be
solemnised in May 2010. For the same, respondent No.2
and her family was busy in the preparations and therefore,
family of respondent No.2 requested the petitioner No.1 to
also involve herself in the preparations being the daughter in
law of the family. However, in the month of April 2010,
petitioner No.1 along with grandson Arnav left for Ludhiana
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for the reason best known to her. Respondent No.2 states
that she and her family were under the impression that the
petitioner No.1 will attend the marriage of her daughter
Ms.Aditi.
6] It is further stated that in the first week of May 2010
when the petitioner No.1 stopped answering phone calls of
respondent No.2's family members under apprehension that
she may play foul to implicate respondent No.2 and her
husband and daughter, all three of them approached
Sessions Court, Greater Mumbai and were released on
anticipatory bail from sessions court. Respondent No.2
further states that when herself and her family was busy in
the preparation of the marriage of daughter Aditi at Mumbai,
her daughter in law did not come to attend the marriage
inspite of invitation from the family of respondent No.2. It is
alleged that therefore family of respondent No.2 presumed
that she may turn up in the first week of June 2010 when the
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school of grandson was to open. It is further stated by
respondent No.2 that she and her family came to know
about ill- motive of the petitioners when Punjab police came
with petitioner No.3 at her residence at Mumbai at night
about 10.30 p.m. to arrest respondent No.2 and her family
members. Respondent No.2 states that in collusion with the
police officers and medical officers of state of Punjab, the
petitioners hatched a criminal conspiracy in order to book
respondent No.2 and her family in a false criminal case on
the verge of the marriage of daughter Aditi in order to lower
their image in the eyes of the society. It is alleged by the
Respondent No.2 that the petitioner Nos. 2 and 3 are
industrialists of Ludhiana having muscle and money power
and in fact the petitioner Nos. 2 and 3 have very good
contacts with police officials and political persons of State of
Punjab and thus they are influential and can book any
person in any false criminal case.
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7] It is stated further by respondent No.2 that on 30 th May
2010 at 10.30 p.m. the petitioner No.2 in order to give effect
to the criminal conspiracy hatched, reached the residence of
respondent No.2 along with one A.S.I.Gurmail Singh of
Samrala Police Station, District Khanna, Punjab along with
local police from Juhu Police Station and arrested
respondent No.2 and her son Gautam Kumar. It is further
stated by respondent No.2 that when she and her son
Gautam Kumar showed a copy of the anticipatorry bail
order, the petitioner No.2 and the said A.S.I.Gurmail Singh
tore the said order and took them to Juhu Police Station. All
through the said episode, the abovesaid police officer was
constantly in touch with his superior officer (SHO) and taking
instructions on his cell phone. Even the petitioner No.2 was
present all the time with the abovesaid police officer and
actively instigated him to go ahead with the arrest and other
formalities.
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8] Thereafter, it is stated by respondent No.2 that on 31 st
May 2010 she and her son Gautam Kumar were produced
before the Additional Chief Metropolitan Magistrate, Borivali
for remand. At that time for the first time the respondent
No.2 and her family members came to know that the
petitioner No.1 in active connivance with the petitioner No.2
and 3 and other accused persons lodged F.I.R. being
C.R.No.133 of 2010 against respondent No.2 and her family
members with Samrala Police Station, Dist.Khanna, Punjab
for the offences punishable under section 307, 498A, 406,
120-B of Indian Penal Code. The Metropolitan Magistrate
on 31st May 2010 granted interim bail to respondent No.2
and granted transit remand to her son Gautam Kumar.
9] It is further stated by respondent No.2 that her son
Gautam Kumar was thereafter produced before the
Magistrate at Punjab and after necessary police remand, he
was sent to judicial custody and after 36 days in custody,
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her son was released on regular bail on 5 th July 2010. The
respondent No.2 further states that since the Metropolitan
Magistrate, Borivali granted her interim bail, she approached
the Sessions Court, Ludhiana for anticipatory bail and she
was released on anticipatory bail.
10] It is further stated that from the record and the
documents produced by the petitioners and subsequently
made available to respondent No.2 and her family members,
they were greatly shocked and surprised to know that the
petitioner No.1 entered into criminal conspiracy with her
brothers and other police officers and medical officers and
cooked up a blatantly false, concocted and fabricated story
against Respondent No.2 and the family members and in
pursuance of the said criminal conspiracy, the petitioner
No.1 on 12th May 2010 at about 8.30 p.m. lodged F.I.R.
No.133 of 2010 with Samrala Police Station for offences
punishable under section 307, 498, 120-B of Indian Penal
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Code. It is also alleged in the said F.I.R. that on 8 th May
2010, husband of respondent No.2, her son, respondent
No.2 herself and daughter Aditi had been to the maternal
house of Petitioner No.1 and asked for money whereupon,
the petitioner Nos. 2 and 3 tried to give Rs.10 lakhs but
however, respondent No.2 and her family members
demanded Rs.25 lakhs. It is further alleged in the said F.I.R.
that brothers of petitioner No.1 requested respondent No.2
and her family members to accept Rs.10 lakhs and assured
that the remaining amount will be given before the marriage
of daughter Aditi and accordingly the respondent No.2 and
her family members accepted Rs.10 lakhs and took the
petitioner No.1 and grandson Arnav from Ludhiana in a car.
It is further alleged that on the way, respondent No.2 and
her family members started abusing petitioner No.1 and in
front of ITI, some distance from Samrala, the son of
respondent No.2 Gautam Kumar put a rope around the neck
of Petitioner No.1 and Aditi caught hold of her from her arms
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and the respondent No.2 and her husband encouraged
them by saying that petitioner No.1 should be eliminated
and the said Gautam Kumar tried to strangulate the
petitioner No.1. It is further alleged that however, the
petitioner No.1 opened the door of the car and jumped out
of the car along with child Arnav. It is alleged that the said
incident took place at 10.45 p.m. and on seeing some
passersby, the respondent No.2 and her family members
ran away towards Chandigarh and in the meantime some
passersby stopped near petitioner No.1, enquired with her
and got her admitted in Civil Hospital, Samrala where the
Doctors referred her for higher management, but the
brothers of petitioner No.1 took her to private nursing home,
namely, Medicity, in Ludhiana. According to respondent
No.2 with all these allegations, the said F.I.R. came to be
lodged.
11] The investigations in the said crime (F.I.R.No.133 of
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2010) were conducted by A.S.I. Gurmail Singh. It is further
alleged by respondent No.2 that since the F.I.R. was part
and parcel of criminal conspiracy hatched by the petitioners
with A.S.I. Gurmail Singh, the investigations were naturally
conducted by him, and to give effect to their criminal
conspiracy the petitioner No.2 along with the aforesaid
police officer and other police of Punjab came to residence
of respondent No.2 in order to arrest respondent No.2 and
her family members. It is further alleged by respondent No.2
that the petitioners and other accused in the complaint
forged and fabricated several documents including public
records of police station and even the medical records of
civil hospital Samrala and prepared false statements and
false entries were made.
12] It is further stated by respondent No.2 that admittedly
herself and her family members were not at all present in
Punjab on 8th May 2010 when the alleged incident took
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place and they were busy in preparations of the marriage of
daughter Aditi. It is further stated that when the respondent
No.2 and her family members learnt the story cooked up by
the petitioners, they were under great shock and being
aggrieved by the registration of the F.I.R. by the petitioner
No.1, husband and daughter of respondent No.2
approached the sessions court at Ludhiana for ancitipatory
bail and they were released so. Since according to
respondent No.2, a blatantly false and fabricated case was
filed against respondent No.2 and her family members,
husband of respondent No.2 filed a Criminal Misc.
Application No.21215 of 2011 (Exh.G to the petition) in the
High Court of Punjab and Haryana for quashing of F.I.R.
No.133 of 2010 with further prayer to transfer the
investigation to an independent agency. However the
learned Single Judge of Punjab and Haryana High Court
vide order dated 7th September 2012 dismissed the said
petition on the ground that same had become infructuous, a
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copy of which order is annexed at page 128 of this petition.
The daughter of respondent No.2 also filed a petition
bearing Criminal Misc.No.M-39361 of 2011 for quashing of
F.I.R. No.133 of 2010 in the High Court of Punjab and
Haryana at Chandigarh and by the order dated 7 th
September 2012, the learned Single Judge of the Punjab
and Haryana High Court dismissed the petition of the
daughter of respondent No.2. Thereafter, the daughter of
respondent No.2 being aggrieved by the said order dated 7 th
September 2012 preferred Special Leave Petition No.9400
of 2012 in the Supreme Court. However, the Supreme
Court vide order dated 2nd January 2013 dismissed the said
Special Leave Petition.
13] It is further stated in the complaint by respondent No.2
that except the application made by her for anticipatory bail
in the sessions court, Ludhiana, she has not filed any
proceedings in any court for any relief in respect of F.I.R.
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No.133 of 2010. However, she had filed an application
before the A.D.G.P. (Crime), Punjab State for transfer of
investigation and further investigation of F.I.R. No.133 of
2010. Pursuant to this application, the A.D.G.P. (Crime)
referred the said application and directed S.P.State Crime
Office, Punjab SAS Nagar for inquiry vide application
No.331/Reader/DIG dated 29th November 2011.
14] It is further stated by respondent No.2 that her
husband had also filed an application with all supporting
documents for inquiry into the case before the Human
Rights Cell, Punjab, Chandigarh vide complaint No.773 of
2010 and prayed for thorough enquiry in respect of
F.I.R.No.133 of 2010. Pursuant thereto the A.D.G.P.
(Crime), Punjab Police appointed Special Investigation
Team headed by I.G.P. Shri R.L.Bhagat, IPS and the Special
Investigation Team (for short SIT) conducted the
investigations declaring the respondent No.2 and her family
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members as innocent.
15] It is thereafter stated by respondent No.2 that her
husband had further filed application to National Human
Rights Commission, New Delhi. The Director General
appointed a Special Investigation Team (SIT) for spot inquiry
and the SIT concluded that the said F.I.R. 133 is not only
fake but has been registered in connivance with the Punjab
Police.
16] It is further stated by respondent No.2 that pursuant to
her application as well as complaints by her husband, the
independent investigating agencies conducted a detailed
inquiry by recording statements of respondent No.2 and her
family members and also taken on record the documentary
evidence produced to show that on the day of alleged
incident, respondent No.2 and her family members were not
at all in Punjab but were present very much in Mumbai. The
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said independent investigating agencies during the course
of their investigation recorded the statements of the doctor
and independent witnesses and came to the conclusion as
follows:-
(a) that the allegations made by the petitione5r No.1
in her F.I.R. No.133 of 2010 at Samrala Police Station are
false;
(b)
that the alleged incident in the FIR did not at all
occur;
(c) that the false case against the accused in
F.I.R.No.133 of 2010 was preplanned;
(d) that the so called Rahgir (passerby
Mr.J.D.Dawar) was not a Rahgir as projected in the F.I.R.
but in fact a family friend and business associate of
petitioner Nos.2 and 3. This fact was proved by call records
which show this relation and also by an affidavit to that
effect filed by Mrs.Priyanka Jindal wife of brother of
petitioner No.1.
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(e) That as projected and recorded in the said F.I.R.,
J.D.Dawar as a Rahgir had for the first time learned of
Jogesh Aggarwal's cell number from the petitioner No.1 at
the alleged site where she was found by him, was false, as
he was very much known and in contact with Jogesh
Aggarwal and others prior to that alleged incident.
(f) that all the four accused named in the F.I.R.
namely the respondent No.2, her husband Suresh Kumar,
son Gautam Kumar and daughter Aditi were not present at
the alleged scene of crime but were in Mumbai which fact
was established by the inquiry teams from the call records of
those accused and statements of witnesses who vouched
about their presence in Mumbai prior to and after the alleged
occurrence in Samrala on 8th May 2010.
(g) In the said inquiry it was found that Dr.Sachdeva
of Medicity Hospital, Ludhiana too was managed by brothers
of the petitioner No.1. He issued a written endorsement to
the police that the petitioner No.1 was not in a state to make
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a statement to police for next few days after she was
admitted in his hospital on the night of 8 th May 2010.
Contrary to this endorsement, he had directed in the case
records that the petitioner No.1 (Shallu) be given Parathan
in her diet which she consumed and enjoyed till her stay in
that hospital which fact again proves that she had not
sustained any injury to her throat due to alleged attempt to
kill her by strangulation by a rope. Furthermore, on the
evening of 11th May 2010 she left that hospital with an
excuse that she would go to her home but went to Civil
Hospital, Samrala to get an added injury to her MLR which
fact proves that it was too a part of the said conspiracy to
plug the hole in the MLR in respect of injury enough to
attract serious penal section of 307 of I.P.C.
(h) That Dr.Negi of Civil Hospital, Sarmala who is
alleged to have treated the petitioner No.1 recorded injuries
on her person in the MLR which did not correspond to the
alleged history. The petitioner No.1 mysteriously appeared,
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though she was already an indoor patient in Medicity
Hospital, Ludhiana. In that hospital again on the night of 11 th
May 2010 she got an additional injury added to her MLR as
a dangerous injury on the basis of the statement of ENT
Specialist Dr.Saroj Sethi. It was found by the inquiry teams
that Dr.Saroj Sethi never endorsed any injury in the MLR as
dangerous which fact she categorically stated in her
statement to the inquiry teams as well before the magistrate
Samrala. Dr.Gaurav Sachdeva's cell number call records
too established that he was in contact with brothers of the
petitioner No.1 prior to the alleged incident. This fact as
emerged in the inquiry establishes that Dr.Negi too was a
co-conspirator in the criminal conspiracy hatched as pointed
out hereinabove.
(i) The Civil Surgeon of Civil Hospital Sarmala when
sought by the Inquiry Team, opined that the alleged injury
recorded in the MLR could be self-inflicted. This vital
opinion clearly proves that the injuries that found place in
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petitioner No.1's MLR were not genuine but created ones.
(j) That all the call records show that brothers of the
petitioner No.1, J.D.Dawar, Dr.Negi, Arvind Puri, SHO
Samrala, P.S. were all in contact with each other prior to,
during and after the alleged crime. Not only this, the records
further prove that Jogesh Jindal, Vinay Jindal (both brothers
of the petitioner) were very much present in Samrala Police
Station itself prior to the alleged occurrence. Shockingly, the
call records also shows that wife of SHO Arvind Puri too was
in contact with family members of the petitioner No.1. This
irrefutable documentary evidence adds to the finding that all
the said persons and police officials have hatched a criminal
conspiracy for the said objective.
(k) The inquiry teams have in clear wording
recommended that the F.I.R. No.133 of 2010 of Samrala
Police Station registered against all the four accused viz.,
the complainant (respondent No.2), her husband Suresh
Kumar, son Gautam and daughter Aditi be cancelled;
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(l) the innocence report in respect of all the said four
accused be filed in the court;
(m) action against the responsible police officers/
person for framing the false case be initiated.
17] In addition to the above noted findings of the Inquiry
Teams, the inquiry records if examined further would reveal
few more facts which fortify the findings of the Inquiry Teams
that:-
(i) The I.O. of case ASI Gurmail Singh in the very
first Jimny (case diary) noted down that the case appeared
to be shukky (doubtful). SHO Arvind Puri too endorsed this.
It becomes imperative in such case to verify the veracity of
the complaint and related events and then if found to be true
act further. Instead of first doing the verification of the
complaint the local court was approached the very next day
and arrest warrant was sought against all the four accused
named in the F.I.R. This gives rise to the inference that they
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wanted to arrest the said four accused from the marriage
ceremony of Aditi that was to take place on 16 th May 2010.
Unfortunately for them, they did not succeed in it on time
and got the warrants extended on 25th May 2010.
(ii) Samrala Police Station is about 40 kms away
from Ludhiana city. The proven facts that all the said
conspirators were in communication with each other prior to,
during and after the alleged crime, and also the fact that wife
of SHO Arvind Puri was also in contact with family members
of the petitioner No.1 given ample reasons to infer that SHO
Arvind Puri and ASI Gurmail Singh were not party to the said
conspiracy as a charity or favour but to abuse their position
as public servants and thereby to gain pecuniary or other
advantage to the petitioner No.1 and her brothers.
(iii) It would not be a disputed fact that Samrala
Police Station is located along the National Highway from
Chandigarh to Ludhiana between the alleged scene of crime
and civil hospital, Samrala. It is stranger than fiction to
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mention that none of persons i.e. the so called Rahgir
J.D.Dawar and Jogesh Aggarwal who passed that police
station at least twice during the alleged episode did not
inform the police about the alleged crime in order to put the
police on alert and nab the accused in time before they get
an opportunity to escape far away. This was obviously not
done because they knew they had stage managed the crime
and any such timely act would expose them.
(iv) It is also not disputed that the petitioner No.1 is
well educated and her hands were not injured or disabled in
the alleged incident. She was naturally expected, if she was
unable to speak due to an injury to her throat, to write down
her complaint on a piece of paper in the Civil Hospital itself.
The alleged throat injury did not prevent her from eating
Paranthe very same day at Mediciti Hospital, Ludhiana and
she could not have done so had that injury actually existed.
It is also pertinent to note that she jumped out of the running
car along with a three year child, but there is no medical
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examination of the child. This lapse too was part of the
conspiracy to create a situation so that by the time the F.I.R.
was lodged and police were put in action, the accused
persons had reached Mumbai so that they could all be
arrested from the marriage ceremony of Aditi scheduled on
16th May 2010 i.e. two days after the alleged crime plot.
(v) No efforts were made to trace the car and its
driver in which the alleged attempt on life of the petitioner
No.1 was made nor the petitioner No.1 was questioned on
this count while her F.I.R. was recorded. There is no
mention of the make or registration number of the car in the
said F.I.R. No.133. Even the Driver of the car was not made
an accused. This vital piece of evidence as per the false
F.I.R. was left untouched for obvious reasons.
(vi) Though section 406 of Indian Penal Code was
added in the F.I.R. no efforts were made to recover the
stridhan. As regards the alleged cash of Rs.10 lakhs given
to Suresh Kumar on 8th May 2010 as alleged in the F.I.R. no
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attempt was made in Mumbai to recover or find the same at
the time of or after the illegal arrest of the complainant and
her son Gautam by a house search panchanama and/or
interrogation of the arrested accused in Mumbai itself
although Mumbai itself was the only place from where such
recovery could have been possible. On the contrary, the
arrested accused were taken to Punjab immediately after
the remand on next day of arrest.
(vii) The F.I.R. was recorded on the night of 12 th May
2010 after about 96 hours' delay after the alleged incident.
This too was a deliberate and intentional act on the part of
all the conspirators in order to avoid investigation measures
to trace the car, its driver/ owner, the cash that was being
carried in it, the weapon of crime i.e. the rope etc., all of
which would have been done if the F.I.R. came to be
recorded promptly.
(viii) The petitioner No.1 and her brothers did not
cooperate with the Inquiry Team in placing their say on
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record. Instead they approached the High Court against the
Inquiry Team for alleged harassment. If their case was true,
they should have placed on record their statements/
documents in support of their claims or allegations. But they
intentionally evaded this for obvious reasons to stall the
inquiry team from finding out the truth. On the contrary, they
managed to file a challan against three accused i.e. the
husband of respondent No.2, her son and her daughter in
hurried manner through the SHO and staff officer to DGP
Punjab in August 2011, on the basis of biased documents
before their transfer from Samrala. The same challan is still
pending and no charges against three persons other than
Respondent No.2 have been framed till date.
(ix) It is also not a disputed fact that the false F.I.R.
No.133 of 2010 names the complainant (respondent No.2),
her husband Suresh Kumar, their son Gautam and daughter
Aditi as the accused who made an attempt on the life of
petitioner No.1. The filing of an innocence report in the
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Sessions Court of Ludhiana by the I.O. based on the
findings of the Inquiry Team appointed by the ADGP (Crime)
Punjab Police also proves the innocence of remaining three
accused viz., Suresh Kumar, Gautam and Aditi.
(x) The complainant (respondent No.2) and Gautam
were arrested illegally though the complainant had valid
anticipatory bail. S.H.O. Arvind Puri was in full control of the
arresting situation and was informed of the anticipatory bail
but he and Jogesh Jindal who was present with accused
No.6 ASI Gurmail Singh had encouraged and instigated
Gurmail Singh to defy the anticipatory bail order and effect
the arrest. This fact shows that I.O. Gurmail Singh and SHO
Arvind Puri in pursuance of the conspiracy decided to effect
the arrest illegally and prepare related documents in
incorrect way and take such incorrect record on their
investigation papers and also to present such incorrect
records before the court during the court proceedings during
the remand stage as well as to courts in Punjab also.
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(xi) The petitioner No.1 recorded her F.I.R. to
accused Gurmail Singh on 12th May 2010. It is admitted
position that she had been to Civil Hospital, Samrala on the
night of 11th May 2010 to get her MLR recorded with an
additional injury which could be serious enough to attract the
provisions of Section 307 of Indian Penal Code. She
intentionally suppressed this vital fact from the F.I.R. and/or
did so at the instance of other conspirators to hide their
attempt to get the MLR modified to include serious injury.
(xii) The call records received and produced before
the Superior Police Officers and Inquiry Teams by the
complainant's husband Suresh Kumar and also collected by
the Inquiry Teams revealed that the conspirators were
communicating with one another prior to, during and after
the alleged crime on 8th May 2010 by several calls ranging
from few seconds to as long as 600 seconds. The fact of
these several calls mainly during the relevant period of
actual execution of the objectives of the hatched criminal
{32}
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conspiracy undoubtedly point to the conspiracy and adds to
the falsity of the case against the four accused named in the
F.I.R.
18] The respondent No.2 further states that the said
reports with findings and recommendations therein were
placed before the higher authority of the Punjab Police who
in turn
examined the reports, findings and the
recommendations and accepted the same in full. It is further
stated that pursuant to this, the ADGP (Crime) Punjab Police
Vide letter No.13374 dated 3rd July 2012 directed
S.S.P.Khanna having jurisdiction over Samrala Police
Station to comply with the said three recommendations of
the inquiry agency and sought the report of compliance.
19] The respondent No.2 further states that S.S.P.Khanna
had partially complied with the said three directions. From
the aforesaid reports, it is abundantly clear that Respondent
{33}
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No.2 and her family were totally innocent and falsely
implicated in a crime by the petitioners with the active
connivance of the accused persons named in the complaint
of respondent No.2. It is further alleged by the complainant /
respondent No.2 that though the previous investigating
officer filed a charge sheet against three persons viz., the
husband of respondent No.2, her son and daughter no
charge sheet was filed against the respondent No.2. In this
background of the matter, the respondent No.2 filed a
private complaint bearing C.C.No.410/SW/2012 in the court
of Metropolitan Magistrate, 10th Court, Andheri, for offences
punishable under section 120-B, 342, 465, 467, 468, 469,
471, 193, 211, 218, 220, 500 of Indian Penal Code and
Section 13(1)(d) of the Prevention of Corruption Act, 1988
against the petitioners and other accused persons named in
the said complaint. The Metropolitan Magistrate vide order
dated 9th October 2012 sent the complaint to the Juhu police
station for investigation under section 156(3) of Cr.P.C. In
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pursuance thereof, the Juhu Police Station registered the
crime vide M.E.C.R.No.11 of 2012 dated 3 rd November
2012.
20] The respondent No.2, therefore, submits that it is clear
that her complaint is not a counter blast to the F.I.R. lodged
by the petitioner No.1 against her and her family members
and all the ingredients of the offences are specifically made
out against the accused persons, and taking into
consideration the conduct of the petitioners, the complaint
lodged by her cannot be quashed in any circumstances and,
in fact, no ground is made out by the petitioners for
quashing the same. There is no abuse of process of law
and, on the contrary, the petitioners have filed a false and
blatantly concocted F.I.R. against the respondent No.2 and
her family members.
21] It is on this complaint that the petitioner alleges that the
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Metropolitan Magistrate passed an order, a copy of which is
at pages 30/31 of the paperbook on 9 th October 2012. That
order under section 156(3) of the Code of Criminal
Procedure, 1973 directs the Senior Inspector of Police, Juhu
Police Station to register an F.I.R. and to inquire and
investigate in the matter and to submit a report on or before
20th December 2012.
22] Before passing this order and direction, the learned
Magistrate records that the complaint read as a whole,
prima facie, discloses the commission of a cognisable
offence. That is how the F.I.R. was registered and, when
investigations have commenced, that this petition has been
filed.
23] Mr.M.S.Mohite, learned Counsel appearing for
petitioners in the first petition submitted that the petitioners
therein do not wish to argue anything on the merits of the
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complaint. They are questioning the power of the concerned
police station at Mumbai to register the F.I.R. and to
commence investigation and the only issue canvassed by
the Petitioners is one of territorial jurisdiction. In the
submission of Mr.Mohite, the present petitioners are all
residents of Ludhiana, State of Punjab. They had never
resided nor are carrying on any business or any activity for
gain within the State of Maharashtra or particularly at
Mumbai. They could not have been proceeded against by
the Mumbai police. The Mumbai police have no authority or
jurisdiction to question these residents of Punjab State as
the entire cause for the institution of the present private
complaint by respondent No.2 has occurred in the State of
Punjab. The competent police station within the State of
Punjab had taken cognisance of a complaint or a criminal
case instituted by the present petitioners wherein the
respondent No.2 to this petition was named as one of the
accused. That could not have given her any right to file a
{37}
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private complaint and arraign the present petitioners as
accused in the State of Maharashtra and at Mumbai. By
filing such a complaint, and when the cause of action has
never occurred within the limits of the Police Station
concerned, shows that the proceedings are not bonafide but
criminal law is abused to harass the present petitioners and
to somehow bring them to Mumbai and make them face
criminal trial. Mr.Mohite's submission, therefore, is that the
Inspector of Police attached to Juhu police station has no
jurisdiction or power to investigate the crime and proceed
against the present petitioners.
24] Mr.Mohite has then submitted that the present F.I.R.
has been registered and the investigations have
commenced therein even against those who are public
servants within the meaning of the said term, in the Indian
Penal Code and Prevention of Corruption Act, 1988. The
complaint is filed not only against private persons but also
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these public servants. A private criminal complaint could not
have been filed alleging offences punishable under
Prevention of Corruption Act, 1988 as it is not maintainable.
Mr.Mohite has invited our attention to the provisions
contained in the IPC and the Prevention of Corruption Act,
1988 enabling initiation of prosecution against public servant
and it is submitted that being police officials and part of
Punjab Police Force, unless and until, the Punjab Police
Force and superiors therein authorise and sanction the
prosecution of these police officers for the offences alleged
even under the aforementioned laws, the Mumbai Police
could not interrogate and proceed against them, all the more
on a private criminal complaint filed by respondent No.2. If
the respondent No.2 could not have invoked the jurisdiction
of the Magistrate to allege offences punishable under the
Prevention of Corruption Act, 1988, then, the F.I.R. all the
more deserves to be quashed. Mr.Mohite relies upon the
following decisions in support of his submissions:-
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(I) (2007) 7 S.C.C. 378 (Rejendra Singh Vs. State of U.P.
and Anr.)
(II) (2005) 12 S.C.C. 709 (Dilawar Singh Vs.
Parvinder Singh @ Iqbal Singh and Anr)
(III) (2001) 7 S.C.C. 536 (Hemant Dhasmana Vs.
Central Bureau of Investigation and Anr.)
(IV) (1984) 2 S.C.C. 500 (A.R.Antulay Vs. Ramdas
Sriniwas Nayak and Anr.).
25] On the other hand, the second Respondent/
complainant's Advocate, Mr.S.G.Deshmukh, submitted that
this petition is a abuse of the process of the Court. First of
all, Mr.Deshmukh submits that the petition does not even
annexe a copy of the F.I.R. Secondly, without referring to
the allegations in the F.I.R., the argument of territorial
jurisdiction based on the cause of action has been raised.
Thirdly, all the ingredients essential for criminal prosecution
to be maintained are prima facie disclosed as the complaint
is not sought to be quashed on the ground that it does not
disclose commission of any cognisable offence. Thus, the
foundation for all the arguments in law is that the complaint
does disclose the commission of cognisable offence. If that
{40}
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is the test, then, this petition deserves to be dismissed.
26] Mr.Pande learned Counsel appearing on behalf of the
petitioners who are police Officers in other petitions viz., Writ
Petition No.1495 of 2013 adopts the arguments of Mr.Mohite
and additionally submits that the petitioners cannot be held
guilty of any offences when in discharge of their official
duties, they proceeded against the complainant and the
other family members in this case.
27] Both Mr.Mohite and Mr.Pande have submitted that
there was a serious complaint made by the complainant in
the State of Punjab and on the footing that her husband had
after strangulating her by a rope thrown her out of a running
car and tried to kill her. There were other and specific
allegations of harassment and ill treatment, so also cruelty
meted out to her by her husband and her in laws who
compelled her to return to the parental house in Punjab.
When such was the nature of the allegations in the
{41}
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complaint against respondent No.2 and others in the present
petition, then, the respondent No.2's complaint is nothing
but an afterthought and a counter-blast to the criminal
proceedings validly instituted and prosecuted in the State of
Punjab. The persons arraigned as accused in criminal
proceedings in the State of Punjab made all efforts to stall
the criminal proceedings. They could not succeed and that
is evident from the orders of the competent court in the
State of Punjab.
28] Our attention has been invited to the statement of
Mrs.Shalu Agarwal (Petitioner No.1), wife of Gautam Kumar
and resident of House No.2881, Near LIC Office, Gurudev
Nagar Police Station, Division 5, Ludhiana, in F.I.R. 133 of
2010 dated 12th May 2010 alleging offences punishable
under sections 307, 498A, 406 and 120B of Indian Penal
Code, registered at Samrala Police Station, District Khanna
in the State of Punjab.
{42}
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29] It was submitted by the learned Counsel that attempts
were made to approach not only the Human Rights
Commission but also Punjab and Haryana High Court and
the Hon'ble Supreme Court. However, none could succeed
and yet an attempt is now made to stall the criminal
proceedings in the State of Punjab where the defence of the
accused - respondent No.2 before this court, is that of alibi.
In these circumstances, it is submitted that the petition be
allowed.
30] On the other hand, Mr.Deshmukh has taken us through
the records and submits that the arguments of Mr.Mohite
and Mr.Pande are not tenable because after due scrutiny of
all the allegations made, the competent authorities have
discovered that the criminal proceedings in the State of
Punjab were abuse of the process of the court.
Mr.Deshmukh has taken us through the affidavit of the
{43}
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original complainant and submitted that the petitioner No.1
entered into criminal conspiracy with her brothers and other
police and medical officers and cooked up a blatantly false
and concocted, fabricated story against the respondent No.2
Sunita Sureshkumar and her husband, son and daughter
Aditi. In fact the true factual position is that the marriage of
daughter was to be solemnised in the month of May 2010.
None of them were, therefore, in the State of Punjab and in
Ludhiana in early May 2010. Mr.Deshmukh, therefore,
submits that in the affidavit summary of the findings of the
detailed investigations have been set out and one does not
find any rejoinder thereto. In these circumstances, it is
apparent that a false complaint was made to Punjab police
and with the active assistance of the Punjab Police, the
original complainant and her family members were framed.
In such circumstances, the F.I.R. in the present case at
Mumbai discloses commission of cognisable offence and all
these allegations are made in the memo of
{44}
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C.C.No.410/SW/2012, being a criminal complaint filed in the
Court of Metropolitan Magistrate, 10 th Court, Mumbai.
Mr.Deshmukh has taken us through para No.7 to 18 of this
complaint and submitted that how the same discloses
commission of cognisable offences is clear and, therefore,
this is not a fit case for interference in this Court's inherent
and writ jurisdiction.
31] With the assistance of learned Counsel appearing for
the parties, we have perused the petitions and their
annexures. As far as petitioners in the first petition
(W.P.196-13) are concerned, they are the complainants in
the F.I.R.No.133 of 2010 registered at Samrala Police
Station. Since they are not raising a plea that the criminal
complaint which is sought to be investigated does not
disclose the commission of any cognisable offence, then we
ought not to proceed on the footing that this complaint
deserves to be quashed by us. Even otherwise, we have
{45}
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perused carefully a copy of the present criminal complaint,
out of which the subject F.I.R. at Mumbai has been
registered. Upon perusal of this complaint in its entirety and
taking the allegations as they are and assuming them to be
true and correct, we are of the opinion that the same
discloses the commission of offences alleged by the
complainant - respondent No.2. We do not think that a
criminal complaint making such serious allegations not only
against the private parties but public servants should be
quashed. Whether the complainant will be able to prove her
allegations or not is something which need not be gone into
or considered by us at this stage. Prima facie, when the
allegations in the complaint read as a whole make out the
commission of cognisable offences against all the accused,
then, we should not quash the criminal proceedings in our
inherent and writ jurisdiction. Equally, our order passed in
the present petition would not mean that we have arrived at
a definite conclusion that the allegations in the F.I.R. filed in
{46}
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the State of Punjab are false and cooked up as alleged.
However, merely because the present complainant Sunita
Sureshkumar is an accused in a criminal case in State of
Punjab does not make her present complaint not
maintainable. Her complaint is based on the findings that
are recorded in an Inquiry which was ordered by none other
than the Additional Director General of Police (Crime). That
was because of a complaint made by the husband of the
complainant Sunita Suresh Kumar, Mr.Suresh Kumar to the
Human Rights Cell, Punjab. In these circumstances, to
brush aside these findings and at this stage would not be
proper. Once this complaint filed by the complainant Sunita
Suresh Kumar discloses prima facie as to how the
complainant and her family were sought to be involved in a
criminal case in Punjab, then it will not be proper for us to
exercise our inherent and writ jurisdiction. We are not
brushing aside any order of the High Court of Punjab and
Haryana. All that we have observed is based on the
{47}
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allegations in the criminal complaint C.C.No.410/SW/2010
and which is sought to be quashed by the present
petitioners.
32] To be fair, Mr.Mohite did not urge that this complaint
should be quashed on merits. But his argument was that
two legal questions arise for consideration and
determination. He relied upon section 156 of Cr.P.C. That
section reads thus:-
"156. Police officer's power to investigate
cognizable cases.
(1) Any officer in charge of a police station
may, without the order of a Magistrate,
investigate any cognizable case which a court
having jurisdiction over the local area within the
limits of such station would have power to
inquire into or try under the provisions of
Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one,
which such officer was not empowered under
this section to investigate.
(3) Any Magistrate empowered under section
{48}
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190 may order such an investigation as above
mentioned."
33] The argument of Mr.Mohite is that the learned
Magistrate, 10th Court, Mumbai and equally the Juhu Police
Station had no jurisdiction to take any note of the criminal
complaint. The Magistrate passed an erroneous order
completely ignoring sub-sections 1 and 3 of section 156 of
the Cr.P.C. We are unable to accept this contention for
more than one reason. The Hon'ble Supreme Court in the
case of Rasiklal Dalpatram Thakkar Vs. State of Gujarat &
Ors., reported in A.I.R. 2010 S.C. 715 held as under:-
"18. The principal question which emerges from
the submissions made on behalf of
the parties is whether in regard to an order
passed under Section 156(3) Cr.P.C. the
police authorities empowered under Sub-
Section (1) of Section 156 can unilaterally
decide not to conduct an investigation on the
ground that they had no territorial jurisdiction
to do so."
20. From the aforesaid provisions it is quite clear
that a police officer in charge of a police station
can, without the order of a Magistrate, investigate
{49}
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any cognizable offence which a Court
having jurisdiction over such police station can
inquire into or try under Chapter III of the Code.
Sub-section (2) of Section 156 ensures that once
an investigation is commenced under Sub-section
(1), the same is not interrupted on the ground that
the police officer was not empowered under the
Section to investigate. It is in the nature of a
"savings clause" in respect of investigations
undertaken in respect of cognizable offences.
In addition to the powers vested in a
Magistrate empowered under Section 190
Cr.P.C. to order an investigation under Sub-section
(1) of section 202 Cr.P.C., Sub-section (3) of
Section 156 also empowers such Magistrate to
order an investigation on a complaint filed before
him."
21. As far as the reference made to Sub-section
(4) of Section 181 is concerned, the same appears
to be misconceived having regard to the contents
thereof which read as follows :-
"181. Place of trial in case of certain
offences.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) Any offence of criminal
misappropriation or of criminal breach of
trust may he inquired into or tried by a court
within whose local jurisdiction the offence was
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committed or any part of the property which is
the subject of the offence was received or
retained, or was required to be returned or
accounted for, by the accused person."
Sub-section (4) only indicates that an inquiry or
trial of an offence of criminal misappropriation or
criminal breach of trust can be conducted by a
Court within whose jurisdiction the
offence had been committed or any part of the
property forming the subject matter of the offence
is received or retained or was required
to be returned or accounted for by
the accused ig person. The said provisions
do not account for a stage contemplated on
account of an order made under Section 156(3)
Cr.P.C."
"22. In the instant case, the stage
contemplated under Section 181(4)
Cr.P.C. has not yet been reached. Prior
to taking cognizance on the complaint
filed by the Bank, the learned Chief
Judicial Metropolitan Magistrate,
Ahmedabad, had directed an inquiry under Section
156(3) Cr.P.C. and as it appears, a final report was
submitted by the Investigating Agency
entrusted with the investigation stating that
since the alleged transactions had taken place
within the territorial limits of the city of Mumbai, no
cause of action had arisen in the State of Gujarat
and, therefore, the investigation should be
transferred to the police agency in Mumbai.
There seems to be little doubt that the Economic
Offences Wing, State CID (Crime), which had
been entrusted with the investigation,
{51}
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had upon initial inquiries recommended that the
investigation be transferred to the police agency of
Mumbai. In our view, both the trial Court as well as
the Bombay High Court had correctly interpreted
the provisions of Section 156 Cr.P.C. to hold that it
was not within the jurisdiction of the Investigating
Agency to refrain itself from holding a proper and
complete investigation merely upon arriving at a
conclusion that the offences had been committed
beyond its territorial jurisdiction....."
23. Having regard to the law in existence today, we
are unable to accept Mr. Syed's submissions that
the High Court had erred in upholding the order of
the learned Trial Judge when the entire cause of
action in respect of the offence had
allegedly arisen outside the State of Gujarat.
We are also unable to accept the submission that it
was for the Investigating Officer in the course
of investigation to decide whether a particular
Court had jurisdiction to entertain a complaint or
not. It is the settled law that the complaint made in
a criminal case follows the place where the cause
arises, but the distinguishing feature in
the instant case is that the stage of taking
cognizance was yet to arrive. The Investigating
Agency was required to place the facts elicited
during the investigation before the Court in order to
enable the Court to come to a conclusion as to
whether it had jurisdiction to entertain the
complaint or not. Without conducting such an
investigation, it was improper on the part of the
Investigating Agency to forward its report with the
observation that since the entire cause of action for
the alleged offence had purportedly arisen in the
city of Mumbai within the State of Maharashtra, the
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investigation should be transferred to the
concerned Police Station in Mumbai. Section
156(3) Cr.P.C. contemplates a stage where the
learned Magistrate is not convinced as to whether
process should issue on the facts disclosed in the
complaint. Once the facts are received, it is for the
Magistrate to decide his next course of
action....."
34] Pertinently, Mr.Mohite does not dispute that the power
under section 156(3) has been exercised by the Magistrate
in this case in issuing the order and direction dated 9 th
October 2012. Once that is the admitted position and this
order is traceable to the said legal provision, then, it is
apparent that the Magistrate is yet to take cognisance of the
complaint. It is too well settled to require any reiteration that
the power under section 156(3) Cr.P.C. can be exercised
only before taking cognisance and within the meaning of
sections 200 to 202 of Cr.P.C. However, Mr.Mohite would
urge that before this exercise can be initiated by the learned
Magistrate, he must satisfy himself that the offences alleged
have been committed within the limits of the Juhu Police
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Station. According to Mr.Mohite this is not the position in the
present case.
35] We are unable to agree because this is essentially a
factual matter. The complainant alleges that in pursuance of
some criminal proceedings lodged in the State of Punjab
against the complainant and her family members, what the
police party from Punjab and the accused in this case have
done is to visit the residence of the complainant. The visit is
clearly mentioned in para 11 of the complaint and,
thereafter, the events set out in paras 12, 14 and 15 would
go to show as to how, according to the complainant the
cause of action has arisen at Mumbai. Merely because the
criminal proceedings in the State of Punjab are referred to in
the complaint does not mean that the complaint could not
have been filed at Mumbai. We say nothing more than this
because it would prejudice the case of either party at further
stages of the criminal proceedings. Presently, from what
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has been averred and alleged in these paragraphs coupled
with the written complaint dated 6th October 2012 made by
the complainant to the Juhu Plice Station, we are of the
view that there is no force in the submissions of Mr.Mohite.
36] Apart therefrom, sub-section 1 of section 156 would
show that any officers in charge of the police station may,
without the order of a Magistrate, investigate any cognisable
case which a court having jurisdiction over the local area
within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIII. Therefore, in
the matter of examining the issue of local limits of such
police station and its power to inquire into a criminal
complaint, the officer in charge of the police station cannot
take upon himself the power to rule on the jurisdiction or
competence of a criminal court. All that the Hon'ble
Supreme Court holds in the case of Rasiklal Dalpatram
Thakkar (supra) is that it is not for a police station or the
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station house officer to decide such intricate issues.
Ultimately, Chapter XIII in the Cr.P.C. under which section
177 to 189 fall would show that the Legislature in more
places than one has specified that an offence is triable
where an act is done or where consequences of such act
ensue. (See Section 179 of Cr.P.C.).
37] It is for this reason that the Supreme Court in the case
of Rasiklal Dalpatram Thakkar (supra) holds that even if the
Station House Officer is of the view that he did not have
jurisdiction to investigate the matter, it is not within his
province to refrain from holding a proper and complete
investigation. The powers vested in the investigating
authorities under section 156(1), Cr.P.C. do not restrict the
jurisdiction of the investigating agency to investigate into a
complaint even if it did not have territorial jurisdiction to do
so. To our mind, this judgement of the Hon'ble Supreme
Court is a complete answer to the submissions of Mr.Mohite
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based on a reading of section 156 of Cr.P.C. Equally, his
argument that the Magistrate empowered under section 190
may order an investigation but he will have to also abide by
the mandate of sub-section 1 of section 156 Cr.P.C. cannot
be accepted at this stage. The Hon'ble Supreme Court has
clarified in all such matters that where an officer in charge of
the police station has the requisite jurisdiction to make an
investigation or not will depend upon a large number of
factors including those contained in section 177, 178 and
181 of Cr.P.C. In the matter of Naresh Kavarchand Khatri
Vs. State of Gujarat reported in (2008) 8 S.C.C. 300, this is
what the Hon'ble Supreme Court has held:-
"8. Whether an officer incharge of a police
station has the requisite jurisdiction to make
investigation or not will depend upon a large
number of factors including those contained in
Sections 177, 178 and 181 of the Code of Criminal
Procedure. In a case where a trial can be held in
any of the places falling within the purview of the
aforementioned provisions, investigation can be
conducted by the concerned officer in-charge of
the police station which has jurisdiction to
investigate in relation thereto. Sub-section (4) of
Section 181 of the Code of Criminal Procedure
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Code would also be relevant therefor. We need not
dilate more on analysis of the aforementioned
provisions as the said question has been gone into
by this Court on more than one occasion."
"9. In Satvinder Kaur vs. State (Govt. of NCT of
Delhi) : 1999 (8) SCC 728 this Court noticing
various provisions of the Code of
CriminalProcedure opined:
"12. A reading of the aforesaid sections
would make it clear that Section 177 provides for
"ordinary" place of enquiry or trial. Section 178,
inter alia, provides for place of enquiry or trial
when it is uncertain in which of several local areas
an offence was committed or where the offence
was committed partly in one local area and partly
in another and where it consisted of several acts
done in different local areas, it could be enquired
into or tried by a court having jurisdiction over
any of such local areas. Hence, at the stage of
investigation, it cannot be held that the SHO does
not have territorial jurisdiction to investigate the
crime."
It was furthermore held :
"15. Hence, in the present case,
the High Court committed a grave error in
accepting the contention of the
respondent that the investigating
officer had no jurisdiction to investigate
the matters on the alleged ground that no
part of the offence was committed within
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the territorial jurisdiction of the police
station at Delhi. The appreciation of the
evidence is the function of the
courts when seized of the matter. At the
stage of investigation, the material
collected by an investigating officer cannot
be judicially scrutinized for arriving at a
conclusion that the police station officer of
a particular police station would not have
territorial jurisdiction. In any case,
it has to be stated that in view of Section
178(c) of the Criminal Procedure Code,
when it is uncertain in which of the several
local ig areas an offence was
committed, or where it consists of several
acts done in different local areas, the said
offence can be enquired into or tried by a
court having jurisdiction over any of such
local areas. Therefore, to say at the stage
of investigation that the SHO, Police
Station Paschim Vihar, New Delhi was
not having territorial jurisdiction, is on
the face of it, illegal and erroneous. That
apart,Section 156(2) contains an embargo
that no proceeding of a police officer shall
be challenged on the ground that he has
no territorial power to investigate. The
High Court has completely
overlooked the said embargo when it
entertained the petition of Respondent 2
on the ground of want of territorial
jurisdiction."
10. Yet again in Asit Bhattacharjee vs. Hanuman
Prasad Ojha : (2007) 5 SCC 786 this Court clearly
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held :-
"32. No such explicit prayer was
made by the respondents in their writ
petition, although a prayer for issuance of
a writ in the nature of mandamus, directing
the State of West Bengal to transfer Case
No. 381 to the State of U.P., had
been made. The question of the State of
West Bengal's having a legal duty in that
behalf did not arise. Only in the event an
investigating officer, having regard to the
provisions contained in Sections 154, 162,
177 and 178 of the Code of
Criminal Procedure had arrived at a finding
that the alleged crime was not committed
within his territorial jurisdiction, could
forward the first information report to the
police having jurisdiction in the matter."
33. Stricto sensu, therefore, the High
Court should not have issued such a
direction. Assuming,however, that the High
Court could mould the relief, in our opinion,
it was not a case where on the face of the
allegations made in the complaint petition,
the same could be said to be mala fide. A
major part of the cause of action might
have arisen in the State of U.P., but the
same by itself would not mean that the
Calcutta Court had no jurisdiction
whatsoever."
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38] Once the matter is at initial stage and the learned
Magistrate is yet to take cognisance, then, all the more we
should refrain from saying anything further. For the reasons
aforenoted, we do not find any merit in the first submission
of Mr.Mohite.
39] Equally, Mr.Mohite's and Mr.Pande's second
submission cannot be accepted. The argument is that
section 211 of Indian Penal Code has been mentioned in the
F.I.R. and it is alleged that the officers and public servants of
Punjab State and Punjab Police are charged with an
offences punishable under section 211 of IPC. It is
submitted that whether the charge in the F.I.R.No.133 of
2010 registered in the State of Punjab is false or not cannot
be decided in the present proceedings. The complainant in
the present criminal complaint cannot seek an enquiry or
probe into the allegations or findings in an enquiry against
the police officers and the public servants working within the
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jurisdiction of the competent authority in the State of Punjab.
It is submitted that precisely this is the attempt made in the
present complaint. We are unable to agree with these
submissions and particularly because section 211 may have
been invoked or mentioned in the F.I.R. by the complainant
- respondent No.2 Sunita Sureshkumar. However, whether
there are materials produced to frame any charge or to
proceed against the petitioners or other accused under this
section is a matter which will be decided only after
investigation. Today the matter is at the initial stage.
Ordinarily Police Investigations should not be interdicted or
interfered with by this Court. It is for the competent criminal
Court to ultimately take cognisance of the complaint and
which is yet not taken. In these circumstances, we are of
the opinion that the petitioners are in no way prejudiced by
mere reference to section 211 of the IPC in the F.I.R. The
complainant may or may not be able to produce any
material to support her allegations in relation to this offence.
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Equally, the investigating machinery which is duty bound to
investigate the matter fairly and in accordance with the law,
may or may not produce satisfactory and complete
materials. It is premature for us to judge and at this stage,
and we cannot proceed on the footing that section 211 of
IPC would or would not apply and cannot be invoked in this
case. Leaving open all contentions of both sides and for
being raised at an appropriate stage, we reject this
submission of Mr.Mohite and Mr.Pande.
40] Equally, merely because the allegations of criminal
misconduct/ bribery and corruption are made against public
servants and Section 13(1)(d) of Prevention of Corruption
Act, 1988 is invoked does not necessarily mean that the
said enactment would be applied to the public servants/
officials from the police force in the State of Punjab. We
cannot accept the contention that in a private complaint,
offence under Prevention of Corruption Act, 1988 cannot be
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alleged. Merely because this private complaint contains the
allegations of bribery and corruption or criminal misconduct
by public servants and they are arraigned as accused by a
private party, does not mean that the complaint must be
thrown out straight away. Now the Hon'ble Supreme Court
has clarified the position in law. In the case of
Dr.Subramanian Swamy Vs. Dr. Manmohan Singh and Anr.
reported in A.I.R. 2012 S.C. 1185, this is what is observed
by the Hon'ble Supreme Court:-
18. The next question which requires
consideration is whether the appellant has
the locus standi to file a complaint for
prosecution of respondent No.2 for the
offences allegedly committed by him under
the 1988 Act. There is no provision either
in the 1988 Act or the Code of Criminal
Procedure, 1973 (CrPC) which bars a citizen from
filing a complaint for prosecution of a public
servant who is alleged to have committed an
offence. Therefore, the argument of the learned
Attorney General that the appellant cannot file a
complaint for prosecuting respondent No.2 merits
rejection. A similar argument was negatived
by the Constitution Bench in A.R. Antulay v.
Ramdas Sriniwas Nayak
(1984) 2 SCC 500. The facts of that case show
that on a private complaint filed by the
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respondent, the Special Judge took cognizance
of the offences allegedly committed by the
appellant. The latter objected to the jurisdiction of
the Special Judge on two counts, including the one
that the Court set up under Section 6 of the
Criminal Law Amendment Act, 1952 (for short, `the
1952 Act') was not competent to take
cognizance of any of the offences
enumerated in Section 6(1)(a) and (b) upon
a private complaint. His objections were
rejected by the Special Judge. The
revision filed by the appellant was heard by the
Division Bench of the High Court which ruled
that a Special Judge is competent and is
entitled to take cognizance of offences
under Section 6(1)(a) and (b) on a private
complaint of the facts constituting the
offence. The High Court was of the opinion that a
prior investigation under Section 5A of the
Prevention of Corruption Act, 1947 (for
short,`the 1947 Act') by a police officer of the
designated rank is not sine qua non for taking
cognizance of an offence under Section 8(1) of the
1952 Act. Before the Supreme Court, the
argument against the locus standi of the
respondent was reiterated and it was
submitted that Section 5A of the 1947 Act is
mandatory and an investigation by the designated
officer is a condition precedent to the taking of
cognizance by the Special Judge of an
offence or offences committed by a public
servant. While dealing with the issue
relating to maintainability of a private
complaint, the Constitution Bench observed:
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"It is a well recognised principle of
criminal jurisprudence that anyone can set or
put the criminal law into motion except
where the statute enacting or creating an
offence indicates to the contrary. The
scheme of the Code of Criminal Procedure
envisages two parallel and independent
agencies for taking criminal offences to
court. Even for the most serious offence of
murder, it was not disputed that a private
complaint can, not only be filed but can be
entertained and proceeded with according to
law. Locus standi of the complainant is a
concept foreign to criminal jurisprudence save
and except that where the statute
creating an offence provides for the
eligibility of the complainant, by necessary
implication the general principle gets excluded
by such statutory provision.
Numerous statutory provisions, can be
referred to in support of this legal position such
as (i) Section 187-A of Sea Customs Act, 1878 (ii)
Section 97 of Gold Control Act, 1968 (iii)
Section 6 of Import and Export Control
Act, 1947 (iv) Section 271 and Section
279 of the Income Tax Act, 1961 (v)
Section 61 of the Foreign Exchange
Regulation Act, 1973, (vi) Section 621 of the
Companies Act, 1956 and (vii) Section 77
of the Electricity Supply Act. This list is only
illustrative and not exhaustive. While Section
190 of the Code of Criminal Procedure
permits anyone to approach the
Magistrate with a complaint, it does not prescribe
any qualification the complainant is required to
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fulfil to be eligible to file a complaint. But
where an eligibility criterion for a
complainant is contemplated specific
provisions have been made such as to be
found in Sections 195 to 199 of the CrPC.
These specific provisions clearly indicate
that in the absence of any such statutory
provision, a locus standi of a complainant is
a concept foreign to criminal jurisprudence.
In other words, the principle that anyone
can set or put the criminal law in motion
remains intact unless contra-indicated by a
statutory provision. This general principle of
nearly universal application is founded on a
policy that an offence i.e. an act or omission
made punishable by any law for the time being in
force is not merely an offence committed relation to
the person who suffers harm but is also an offence
against society. The society for its orderly
and peaceful development is interested in
the punishment of the offender. Therefore,
prosecution for serious offences is undertaken
in the name of the State representing the
people which would exclude any element of
private vendetta or vengeance. If such is the public
policy underlying penal statutes, who brings anact
or omission made punishable by law to the notice
of the authority competent to deal with it,
is immaterial and irrelevant unless the
statute indicates to the contrary. Punishment of
the offender in the interest of the society being
one of the objects behind penal statutes
enacted for larger good of the society, right to
initiate proceedings cannot be whittled down,
circumscribed or fettered by putting it into
a strait-jacket formula of locus standi
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unknown to criminal jurisprudence, save and
except specific statutory exception. To hold that
such an exception exists that a private complaint
for offences of corruption committed by public
servant is not maintainable, the court would require
an unambiguous statutory provision and a
tangled web of argument for drawing a far
fetched implication, cannot be a substitute
for an express statutory provision."
(emphasis supplied)
The Constitution Bench then considered
whether the Special Judge can take cognizance
only on the basis of a police report and answered
the same in negative in the following words:-"In
the matter of initiation of proceeding before
a Special Judge under Section 8(1), the Legislature
while conferring power to take cognizance
had three opportunities to unambiguously state its
mind whether the cognizance can be taken on a
private complaint or not. The first one was an
opportunity to provide in Section 8(1) itself
by merely stating that the Special Judge
may take cognizance of an offence on a
police report submitted to it by an
investigating officer conducting investigation as
contemplated by Section 5-A. While providing for
investigation by designated police officers of
superior rank, the Legislature did not fetter
the power of Special Judge to take
cognizance in a manner otherwise than on
police report. The second opportunity was
when by Section 8(3) a status of a deemed
public prosecutor was conferred on a private
complainant if he chooses to conduct the
prosecution. The Legislature being aware of a
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provision like the one contained in Section 225
of the CrPC, could have as well provided that
in every trial before a Special Judge the
prosecution shall be conducted by a
PublicProsecutor, though that itself would not
have been decisive of the matter. And the
third opportunity was when the Legislature
while prescribing the procedure prescribed for
warrant cases to be followed by Special
Judge did not exclude by a specific
provision that the only procedure which the
Special Judge can follow is the one prescribed
for trial of warrant cases on a police report. The
disinclination of the Legislature to so provide
points to the contrary and no canon of
construction permits the court to go in
search of a hidden or implied limitation on the
power of the Special Judge to take cognizance
unfettered by such requirement of its being done
on a police report alone. In our opinion, it is
no answer to this fairly well-established legal
position that for the last 32 years no case has
come to the notice of the court in which
cognizance was taken by a Special Judge on a
private complaint for offences punishable under the
1947 Act." (emphasis supplied)
The Court then referred to Section 5A of
the 1947 Act, the provisions of the 1952
Act, the judgments in H.N. Rishbud and
Inder Singh v. State of Delhi (1955) 1 SCR 1150,
State of M.P. v. Mubarak Ali 1959 Supp. (2) SCR
201, Union of India v. Mahesh Chandra AIR 1957
M.B. 43 and held:"Having carefully examined these
judgments in the light of the submissions made,
the only conclusion that unquestionably
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emerges is that Section 5-A is a safeguard
against investigation of offences committed by
public servants, by petty or lower rank police officer.
It has nothing to do directly or indirectly with the
mode and method of taking cognizance of
offences by the Court of Special Judge. It
also follows as a necessary corollary that
provision of Section 5-A is not a condition
precedent to initiation of proceedings before the
Special Judge who acquires power under
Section 8(1) to take cognizance of offences
enumerated in Section 6(1)( a) and ( b),with
this limitation alone that it shall not be
upon commitment to him by the Magistrate. Once
the contention on behalf of the appellant
that investigation under Section 5-A is a
condition precedent to the initiation of
proceedings before a Special Judge and
therefore cognizance of an offence cannot be
taken except upon a police report, does not
commend to us and has no foundation in
law, it is unnecessary to refer to the long
line of decisions commencing from Taylor v.
Taylor ; Nazir Ahmad v. King-Emperor and
ending with Chettiam Veettil Ammad v. Taluk
Land Board , laying down hitherto
uncontroverted legal principle that where a
statute requires to do a certain thing in a
certain way, the thing must be done in that
way or not at all. Other methods of
performance are necessarily forbidden.Once
Section 5-A is out of the way in the
matter of taking cognizance of offences
committed by public servants by a Special
Judge, the power of the Special Judge to take
cognizance of such offences conferred by Section
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8(1) with only one limitation, in any one of the
known methods of taking cognizance of
offences by courts of original jurisdiction
remains undented. One such statutorily
recognised well-known method of taking
cognizance of offences by a court
competent to take cognizance is upon
receiving a complaint of facts which constitutes
the offence. And Section 8(1) says that the
Special Judge has the power to take
cognizance of offences enumerated in
Section 6(1)(a) and (b) and the only mode
of taking cognizance excluded by the
provision is upon commitment. It therefore,
follows that the Special Judge can take
cognizance of offences committed by public
servants upon receiving a complaint of facts
constituting such offences. It was, however,
submitted that even if it be held that the Special
Judge is entitled to entertain a private
complaint, no further steps can be taken by
him without directing an investigation under Section
5-A so that the safeguard of Section 5-A is not
whittled down. This is the selfsame argument
under a different apparel. Accepting such a
submission would tantamount to saying that
on receipt of the complaint the Special
Judge must direct an investigation under
Section 5-A, There is no warrant for such an
approach. Astounding as it appeared to us, in all
solemnity it was submitted that investigation of an
offence by a superior police officer affords a
more solid safeguard compared to a court.
Myopic as this is, it would topsy turvy the
fundamental belief that to a person accused
of an offence there is no better safeguard than a
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court. And this is constitutionally epitomised in
Article 22 that upon arrest by police, the
arrested person must be produced before the
nearest Magistrate within twenty-four hours of the
arrest. Further, numerous provisionsof the Code of
Criminal Procedure such as Section 161, Section
164, and Section 25 of the Indian Evidence Act
would show the Legislature's hesitation in
placing confidence on police officers away
from court's gaze. And the very fact that
power is conferred on a Presidency Magistrate
or Magistrate of the first class to permit police
officers of lower rank to investigate these offences
would speak for the mind of the Legislature
that the court is a more reliable safeguard
than even superior police officers." (emphasis
supplied)
19. In view of the aforesaid judgment of the
Constitution Bench, it must be held that the
appellant has the right to file a complaint for
prosecution of respondent No.2 in respect of
the offences allegedly committed by him under the
1988 Act. "
"45. Today, corruption in our country
not only poses a grave danger to the
concept of constitutional governance, it also
threatens the very foundation of Indian
democracy and the Rule of Law. The
magnitude of corruption in our public life is
incompatible with the concept of a socialist,
secular democratic republic. It cannot be disputed
that where corruption begins all rights end.
Corruption devalues human rights,
chokes development and undermines justice,
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liberty, equality, fraternity which are the core
values in our preambular vision. Therefore,
the duty of the Court is that any anti-
corruption law has to be interpreted and
worked out in such a fashion as to strengthen the
fight against corruption. That is to say in
a situation where two constructions are
eminently reasonable, the Court has to
accept the one that seeks to eradicate
corruption to the one which seeks to
perpetuate it."
"17. The right of private citizen to file
a complaint against a corrupt public servant
must be equated with his right to access the
Court in order to set the criminal law in
motion against a corrupt public official.
This right of access, a Constitutional right
should not be burdened with unreasonable
fetters. When a private citizen approaches a
court of law against a corrupt public servant who
is highly placed, what is at stake is not
only a vindication of personal grievance of
that citizen but also the question of
bringing orderliness in society and
maintaining equal balance in the rule of law. It
was pointed out by the Constitution Bench of this
Court in Sheonandan Paswan vs. State of Bihar
and Others, (1987) 1 SCC 288 at page 315:
"......It is now settled law that a
criminal proceeding is not a
proceeding for vindication of a private
grievance but it is a proceeding
initiated for the purpose of punishment
to the offender in the interest of the
society. It is for maintaining stability
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and orderliness in the society that
certain acts are constituted offences
and the right is given to any citizen
to set the machinery of the criminal
law in motion for the purpose of bringing
the offender to book. It is for this
reason that in A.R. Antulay v. R.S.
Nayak this Courtpointed out that
(SCC p. 509, para 6) "punishment of
the offender in the interest of the
society being one of the objects behind
penal statutes enacted for larger good
of the society, right to initiate proceedings
cannot ig be whittled down,
circumscribed or fettered by putting it
into a strait jacket formula of locus
standi......"
41] In the light of the law laid down by the Hon'ble
Supreme Court, it would not be possible for us to proceed
on the footing that a private complaint is not maintainable.
Particularly when in this case, we have found that the
offences alleged against some of the petitioners are inter
alia under the Prevention of Corruption Act, 1988.
Therefore, when a composite private complaint has been
filed, alleging offences punishable under Indian Penal Code
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as well, then all the more, it would not be proper for us to
interfere with the investigations in pursuance thereof and at
this stage. Moreover, the matter has been brought before
us at the stage of directions issued under section 156(3) of
the Cr.P.C. when the police are proceeding in accordance
with law upon registration of F.I.R. The Metropolitan
Magistrate is yet to take cognisance, and we have no doubt
that he will consider all the materials before proceeding
further and take cognisance.
42] Before parting, we would be failing in our duty if we do
not refer to the judgements cited by Mr.Mohite. The first
judgement in the case of Rajendra Singh Vs. State of U.P.
(supra), is on the principle that the defence raised and that
of alibi is no ground to exercise the powers under section
482 of Cr.P.C. to quash criminal proceedings. There cannot
be any quarrel about this principle and it is binding on us.
However, we are not going into the allegations in the
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criminal complaint filed in the State of Punjab and/or the
defence therein of the complainant Sunita Sureshkumar and
her family members. We have independently considered the
allegations in the subject complaint and as they are based
on developments post registration of F.I.R. in the State of
Punjab and the events taking place in Mumbai, that we are
of the opinion that the criminal complaint cannot be
quashed.
Hence, this judgement cannot be of any
assistance to the petitioners.
43] In the judgement of Dilawar Singh Vs. Parvinder Singh
@ Iqbal Singh and Anr. reported in (2005) 12 S.C.C. 709
(supra), the requirement for sanction for prosecution under
the Prevention of Corruption Act, 1988 is outlined. We say
nothing about the requirement of such sanction because we
are quite aware of the fact that section 19 will have to be
abided by before the competent court proceeds further. In
this case, that stage is yet to be reached. It would be
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therefore premature to make any observations with regard
to applicability of section 19 of the Prevention of Corruption
Act and, therefore, both judgements relied upon Dilawar
Singh (supra) and that of Hemant Dhasmana (2001) 7
S.C.C. 536 cannot be of any assistance to Mr.Mohite.
44] Mr.Mohite's heavy reliance on the judgement in
A.R.Antulay Vs. Ramdas Sriniwas Nayak reported in (1984)
S.C.C. 500 is also not of any assistance to him. We are not
called upon to decide as to whether the cognisance should
be or should not be taken. The matter is at the stage of
investigations. We are not holding nor our observations and
findings as above, which are initial and tentative can by any
means be considered as conferring jurisdiction in the
Metropolitan Magistrate to take cognisance of offences
under the Prevention of Corruption Act, 1988. That such a
Magistrate can not displace the competent court and that of
Special Judge under the Prevention of Corruption Act is
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clear. We do not vest the Magistrate in this case with any
jurisdiction but all that we are considering is the argument
as to whether mere reference or mere invoking of
Prevention of Corruption Act, 1988 and alleging offences
punishable thereunder together with those under IPC would
make a criminal complaint by a private party per se not
maintainable or tenable. That such offences are also
mentioned in
the F.I.R. together with other and
investigations are on, does not mean that the Magistrate
has taken cognisance of the case. He is yet to take
cognisance and, therefore, our order does not in any way
run counter to the law laid down by the Constitution Bench
of the Supreme Court in A.R.Antulay's case (supra).
Therefore, this judgement also cannot assist Mr.Mohite at
this stage.
45] In the above facts and circumstances we are of the
opinion that entertaining the writ petition invoking our
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jurisdiction under Article 226 of the Constitution of India and
equally our inherent powers under section 482 of Cr.P.C. to
quash the ongoing investigations in the F.I.R. would not be
proper and valid. All the more, when we find that the
allegations in the criminal complaint are not only serious but
prima facie the complaint read as a whole, discloses the
commission of a cognisable offence. What are these
offences and under what provisions of Indian Penal Code or
other law is a matter which is yet to be gone into and
decided as the Magistrate is yet to take cognisance. In
such circumstances, we do not deem it fit and proper to
exercise our equitable and discretionary jurisdiction under
the aforementioned provisions.
46] As a result of the above discussion, each of these
petitions are dismissed. Rule is discharged in all of them.
47] At this stage, a request is made that the interim order
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directing not to file a charge-sheet be continued for a period
of four weeks.
48] It is stated on behalf of the original Complainant and
the Investigating Officer that the petitioners have raised a
plea of the territorial jurisdiction of the concerned police
station and, equally, that of the Court passing an order
under Section 156(3) of the Code of Criminal Procedure,
1973. As a matter of law and on facts, we have not found
any substance in these submissions of the petitioners.
However, purely because the interim order was continuing
till date, we are continuing it for a period of four weeks from
today, beyond which period it shall not continue under any
circumstances and we would not extend it for any reason.
(G.S.PATEL, J) (S.C.DHARMADHIKARI, J)
