Abu Bakar Ahmed Kevar vs State Of Gujarat
2021 Latest Caselaw 10342 Guj

     R/CR.MA/3728/2014                           JUDGMENT DATED: 03/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 3728 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SONIA GOKANI

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1      Whether Reporters of Local Papers may be                      NO
       allowed to see the judgment ?

2      To be referred to the Reporter or not ?                       NO

3      Whether their Lordships wish to see the fair                  NO
       copy of the judgment ?

4      Whether this case involves a substantial                      NO
       question of law as to the interpretation of the
       Constitution of India or any order made
       thereunder ?

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             ABU BAKAR AHMED KEVAR & 4 other(s)
                            Versus
                 STATE OF GUJARAT & 1 other(s)
======================================================
Appearance:
MR G R MANAV(6064) for the Applicant(s) No. 1,2,3,4,5
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
======================================================
 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

                           Date : 03/08/2021

                          ORAL JUDGMENT

1. The petitioners are the original accused persons in I-C.R.

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No. 06 of 2014 registered with Paddhar Police Station, Kutch-

Bhuj for the offences punishable under Sections 498(A), 323,

504 and 114 of the Indian Penal Code and Sections 4 and 5 of

the Dowry Prohibition Act.

2. The brief facts leading to this case are as follows: -

2.1. The marriage of the son of the petitioner nos. 1 and 2

namely Abdul Husain Abu Bakar was solemnized with the

respondent no.2 as per the rights and rituals of Islamic

religion on dated 25.05.2009. The husband and wife initially

resided together for some time. After about six months, there

were certain disputes and the respondent no.2 left her

matrimonial home and she came to her parental home and she

continued to reside with her parents.

2.2. It is alleged that her husband received a job at Bahrain

therefore he left the family and there was no communication

of his with respondent no.2's matrimonial family. It is further

alleged that the respondent no.2 with a view to harass her

husband and her in-laws, registered an FIR with a concocted

story that on 04.01.2014, when the petitioners went for the

marriage to the relatives at Kutch, she was manhandled and

because of that she registered an FIR for the aforementioned

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offences.

2.3. The petitioners approached this Court with a view to

seek quashment of this FIR on the ground that the petitioners

no. 1 and 2 - father-in-law and mother-in-law respectively and

the petitioner nos. 3 and 4 being the brother-in-law and his

wife and petitioner no.5 being the sister-in-law (nanand) were

deliberately dragged. It is also alleged that the petitioner no.3

was doing his carpentry work at Image Global Travels Pvt.

Ltd. from 02.01.2014 to 10.01.2014 therefore, he could not

have been present at Kutch on 04.01.2014. The certificate,

bills of payment etc. from the Image Global Travels Pvt. Ltd.

could substantiate his say.

2.4. The petitioner no.5 is the sister-in-law who is a married

woman residing separately from the petitioner and she was at

Mumbai on 04.01.2014. They being the permanent residents

of State of Maharashtra never visited the City of Kutch,

Gujarat. Hence, it is urged that the initiation of prosecution

which is ex-facie illegal, malicious and untenable could not be

allowed. Hence, the following prayers: -

"(A) Your Lordships may be pleased to admit and allow this application.

(B) Your Lordships may be pleased to quash and set aside the impugned F.I.R. registered as I-CR No. 6/2014 with Paddhar Police Station, Kutch-

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Bhuj and the Criminal Proceedings arise out of the aforesaid FIR qua the present petitioners.

(C) During the pendency and final disposal of this petition, Your Lordships may be pleased to stay the investigation and further proceedings of FIR being I-CR No. 6/2014 with Paddhar Police Station, Kutch-Bhuj.

(D) Your Lordships may be pleased to grant kindly any such other and further order/s or relief/s as deemed fit, just and proper in the interest of justice."

3. This has been much resisted by the other side on the

ground that the FIR came to be lodged on 04.01.2014 and the

matter is yet to be investigated. All the petitioners have been

granted anticipatory / regular bail and therefore also, there is

no requirement for any kind of protection to continue.

4. This Court while issuing rule on 19.03.2014 granted ad-

interim relief in terms of para 6(C).

5. When the matter came up for hearing, this Court noticed

that the husband is not traceable and the family chose not to

reveal his destination, phone number, address etc. Therefore,

on 02.07.2021, the following order came to be passed: -

"Today, all the petitioners - original accused nos.2 to 6 have remain present through the Video Conferencing from Mumbai and the complainant - opponent no.2 also attempted to join through the Video Conferencing from Kachchh-Bhuj.

Preliminary talk had taken place. The parties

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are willing to bring an end to their dispute. It appears that the husband of the opponent no.2 is not in India. It is a long time since attempted on her own for the respondent no.2 to get her rights. Recently, she has lost her father also as intimated by the learned A.P.P. upon instruction.

Let the matter be sent to the High Court Mediation Center and the efforts be made to bring out the solution, which may be capable of delivering some fruits to the parties. Particularly, keeping in ming the young age of the complainant and advanced age of parents of the husband of the respondent no.2. Parties shall be called by the Mediation Center through the Video Conferencing. Let the report be submitted to this Court before 23.07.2021 by the Convener, High Court Mediation Center. He is also requested to undertake the same.

S.O. to 23.07.2021."

6. When the matter was referred to the High Court

Mediation Centre, the report of the learned Mediator was

received which is as follows: -

"On 19/7/2021, at 5 p.m. the Mediator had convened a mediation meeting through whatsapp video calling and called Liyakatali Kevar and Maherunisha Kevar. The matrimonial dispute is between Abdulhusen Kevar and Maherunisa Kevar. Liyakatali is a brother in law of Maherunisha and brother of Abdulhusen. Maherunisha talked about the dispute and conveyed her demands/options for the settlement, to which, Liyakatali said that he is not in a position to settle this dispute and it is for the Abdulhusen to settle the dispute. Upon asking about the whereabouts of Abdulhusen, Liyakatali said that his brother Abdulhusen (husband of Maherunisha) is presently working out of country at Baherin. Then, the Mediator repeatedly requested Liyakatali to provide the phone/contact number of Abdulhusen, so that he can be called and mediation proceedings can be started in an effective manner

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and he can give response to the demands/options put forward by his wife Maherunisha. But, Liyakatali said that he has no contact number of his brother Abdulhusen and he is not in a position to provide the same to the Mediation centre. In absence of Abdulhusen Kevan, this mediation case cannot be proceeded further.

In view of the aforesaid development, the Mediator has kept this mediation case as pending. Therefore, it is prayed to the Honourable High Court to pass appropriate order and direct the parties/petitioners to provide the correct mobile number of Abdulhusen Kevar, who is working out of India at Baherin, so that the mediation proceedings can continue further."

6.1. Eventually, the report tendered says that the mediation

did not succeed. Matter therefore was taken up for final

hearing. Both the sides argued at length.

7. Learned advocate Mr. G.R.Manav appearing for all the

petitioners has fervently urged that there will be a

requirement for the Court's indulgence under Section 482 of

the Code of Criminal Procedure.

7.1. He heavily relief on the decision of Preeti Gupta and

Another vs. State of Jharkhand and Another; reported in

2010 (7) SCC 667 to urge that genuine cases of dowry

harassment are of serious concern. It is to be ensured that

exaggerated versions of small incidents should not be

reflected in the criminal complaints. The ultimate object,

according to the Apex Court, of justice is to find out the truth

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and punish the guilty and protect the innocent and to find out

truth is a herculean task in most of the complaints.

7.2. He has urged that all relatives have been alleged against

only with a view to pressurize them to reveal the whereabouts

of the husband. There was a long and protracted litigation,

the quashment is a must. He has urged that this is a fit case

for the Court to exercise its power as the right was sought

from the matrimonial family for a long time and she has

concocted the entire case.

8. Learned advocate Mr. Dagli has strongly resisted this.

He has urged that the husband has not been remaining

present from the year 2011. Prima facie, there is some

incident which has taken place. She has alleged seriously and

the conduct of these persons very apparently reveal that

thing. It is further urged that he has gone away to Bahrain

and has not chosen to return to India. The powers under

Section 482 of the Code are not to be used so easily and they

require the Court's attention only in rarest matter.

8.1. He further has urged that the entire trial is hampered.

The Court may not continue the interim relief which has been

granted much before.

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9. For the reasons to be recorded hereinafter, this

application deserves to be dismissed.

9.1. Apt would be to refer to the decision of the Apex Court

in relation to the quashment of the FIR rendered in case of

Ravindra Kumar Madhanlal Goenka and another vs.

Rugmini Ram Raghav Spinners Private Limited;

reported in 2009 (11) SCC 529, where the Court has held

that while entertaining the petition under Section 482 of the

Code of Criminal Procedure the material furnished by the

defence cannot be looked into, which shall need to be

entertained only at the time of trial. If there is a prima facie

material available, the quashing of the criminal proceedings

cannot be entertained. Investigating Agency must have a

freedom to inquire and investigate into the gamut of the

allegation and to reach to the conclusion of its own.

Preamption of such investigation would be justified only in the

extreme case.

9.2. Recent decision of the Apex Court rendered in case of

M/s Neeharika Infrastructure Pvt. Ltd vs. State of

Maharashtra and others in Criminal Appeal No.330 of

2021 deserves specific reference at this stage, where the

Apex Court was considering the order passed by the Division

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Bench of the High Court of judicature at Bombay dated

28.09.2013 in an application filed by the private respondent

under Article 226 of the Constitution of India read with

Section 482 of the Code of Criminal Procedure with a prayer

to quash the criminal proceedings being FIR No.367 of 2019

dated 19.09.2019, the High Court directed that "no coercive

measures shall be adopted" against the original accused in

respect of the said FIR, and the original complainant has

preferred the present appeal before the Apex Court. The

Court also noted that the original accused filed anticipatory

bail application before the trial Court and the Sessions Court,

Mumbai granted interim protection from arrest to the

accused. It was extended from time to time and continued

nearly for a year thereafter.

During the pendency of the anticipatory bail application,

the original accused preferred petition before the High Court

of judicature at Bombay under Article 226 of the Constitution

of India r/w Section 482 of Code of Criminal Procedure. In

that matter also the High Court had directed no coercive

measure to be adopted against the original accused Nos.2 to 4

in respect of the FIR. When this order was passed, the

complainant had pointed out that the application of the

original writ petitioner was pending before the Sessions Court

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for hearing and the Sessions Court may get influenced by the

said order. Therefore, the Division Bench had directed the

Sessions Court to decide the anticipatory bail application on

its merits. However, on the directions of no coercive measures

to be adopted, the appeal came to be preferred before the

Apex Court, where the Court extensively heard both the sides

and the principal issue which has been considered by the

Apex Court was as follows:

"when and where the High Court would be justified in

passing an interim order either staying the further

investigation in the FIR/complaint or interim order in the

nature of "no coercive steps" and/or not to arrest the accused

either pending investigation by the police/investigating

agency or during the pendency of the quashing petition under

Section 482 Cr.P.C. and/or under Article 226 of the

Constitution of India pending before the High Court?". The

Court examined extensively the parameters of exercise of

powers by the High Court under Section 482 of the Code of

Criminal Procedure and under Article 226 of the Constitution

of India for quashment of the complaint/FIR.

While dealing with the various case laws on the subject,

the Apex Court eventually concluded on the principal issue

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that the High Court when is prima facie of the opinion that an

exceptional case was made out for grant of interim stay of

further investigation, after considering the broad parameters

while exercising the powers under Section 482 of the Code of

Criminal Procedure and under Article 226 of the Constitution

of India, shall need to give brief reasons as to why such

interim order is warranted. It is required to reflect and

demonstrate its application of mind so that the higher forum

can consider as to what has weighed with the High Court

while passing such interim order.

9.3. Apt would be to refer to the relevant & vital paragraphs

of the decision of the Apex Court rendered in case of M/s

Neeharika Infrastructure Pvt. Ltd (supra).

"7.4 In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:

"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise

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secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

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7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to shortcircuit a prosecution and bring about its sudden death.....

8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri)

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36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."

7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in paragraph 11, this Court has observed and held as under:

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"11. ... the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be

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no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."

7.6 In the case of Sanapareddy Maheedhar Seshagiri (supra), in paragraph 31, it is observed and held as under:

"31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the

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investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC."

8. While considering the issue involved, the rights and duties of the police to investigate into cognizable offences are also required to be considered.

8.1 The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 deals with information in cognizable offence and Section 156 with investigation into such offence and under these sections the police have the statutory right to investigate into the circumstances of any alleged cognizable offence.

8.2 The Privy Council in the case of Khwaja Nazir Ahmad (supra) observed that in India, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. It is further observed that it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. It is further observed that the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is

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only to be obtained by leaving each to exercise its own function.

9. When the High Court would be justified in interfering with the investigation by the police, while exercising the inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, few decisions of this Court are required to be noticed and referred to, which are as under 9.1 In the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554, this Court, after referring to the precedents including the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), has observed in paragraphs 25 and 26 as under:

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

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subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad [AIR 1944 PC 18 : 1944 LR 71 IA 203, 213] where the Privy Council observed as under:

"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then."

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary."

In the said decision, this Court also took note of the following observations made by this Court in the case of S.M. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653:

"It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High

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Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.

9.2 In the case of Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195, in paragraph 20, it is observed and held as under:

"20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency."

9.3 In the case of Bhajan Lal (supra), it is observed and held by this Court that save in exceptional cases where non interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of the investigation of offence. It is further observed that in a routine case where information of an offence or offences has been lodged, investigation commenced, search and seizure followed and suspects arrested, the resort to the unusual procedure of oral applications and oral appeals and interim stay order thereon would have the effect of interfering and staying the investigation of offences by the investigating officer performing statutory duty under Cr.P.C.

9.4 In the case of Ujjal Kumar Burdhan (supra), it is observed and held by this Court that unless case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at early/premature stage of investigation.

18. This Court in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, as such,

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deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest thepetitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that "it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation". It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner- accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is observed that such orders are dehors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:

"25. Having reminded the same, presently we can

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only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind."

19. We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.

22. Criminal Miscellaneous Petition No. 4961 of 2021 has been preferred by respondent nos. 2 to 4 herein - original accused under Section 340 r/w Section 195 (1) (B), Cr.P.C. for initiating action against the appellant. It is alleged that the appellant has suppressed the vital documents/agreements and the facts and by suppressing the material documents/agreements and the facts has obtained an interim order dated 12.10.2020 from this Court, staying order dated 28.09.2020 passed by the High Court Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application.

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However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020. Therefore, we close the criminal miscellaneous petition No. 4961/2021 and consequently the same stands disposed of.

23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the urisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process

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of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/ summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the

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interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

24. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned interim order/direction contained in clause (d) of the impugned interim order dated 28.09.2020 by which the High Court has directed that "no coercive measures to be adopted" against the petitioners (respondent nos. 2 to 4 herein) in respect of FIR No. 367/2019 dated 19.09.2019, registered at Worli Police Station, Mumbai, Maharashtra (subsequently transferred to

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Economic Offence Wing, Unit IX, Mumbai, renumbered as C.R. No. 82/2019) is hereby quashed and set aside. However, it is made clear that we have not expressed anything on the merits of the case, more particularly the allegations in the FIR and the High Court to consider the quashing petition in accordance with law and on its own merits and considering the afore-stated observations made by this Court in the present judgment.

25. Having regard to the fact that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and other decisions, referred to hereinabove, some High Courts have continued to pass such interim orders, we direct the Registry to forward a copy of this judgment to all the High Courts to be placed before Hon'ble the Chief Justice to circulate to all the Judges of the High Courts."

10. This Court noticed that the defence on the part of the

petitioners is to an effect that the complainant has left

matrimonial home in the year 2009 whereas the FIR has been

lodged in the year 2014 after a huge delay. There is another

strong allegation that she has attempted to rope-in all the

members of the family of her husband only with a view to file

a malicious and vindictive FIR.

10.1. The delay, per se, in matrimonial matter cannot be a

ground to deny the chance to prove the case to the

prosecution. The Court must not be oblivious of the fact that

no opportunity is given to the Investigating Officer to find out

the truth in the matter which is essentially the job of

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Investigating Officer. After obtaining the order of bail, the

petitioners were already protected and yet they have chosen

to move this Court and had requested for the stay of the

proceedings and since this prayer is operating from the year

2014, nothing has moved thereafter. Therefore, the Court is of

the opinion that this is not a time for appreciating the

defence. The Investigating Officer if finds that the delay was

deliberate and the need of different persons of family of the

husband of the complainant was only to wreck the vengeance,

the Investigating Officer shall need to look into that aspect

and adopt the legal course of action. It is not for this Court at

this nascent stage to go into these defences which are

available even during the investigation and thereafter while

preferring an application for discharge and during the trial.

Again, prima facie, allegations made in the FIR are specific

and not vague or unspecific. How much truth these averment

contains is the domain of investigation agency.

10.2. This Court noticed that all possible attempts have been

made for the parties to mediate and amicably arrive at a

settlement bearing in mind the fact that it is a matrimonial

dispute which continued. The Court also needs to make a

mention that entire family has chosen to shield the husband of

the first informant who has chosen to leave her on her own

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within a very short span of the marriage and had settled-down

at Bahrain. It is alleged that he has his own life that he enjoys

with another marriage and children born out of second

marriage whereas this lady is unable to even prosecute her

matrimonial rights.

10.3. Learned advocate for the petitioners has also shown his

limitation in convincing the family to reveal the address and

further details of the husband of the first informant who

happens to be their son and brother. The talk before the

mediation centre also has failed where also, the required

cooperation could not be obtained.

11. Be that as it may, noticing the kind of allegations

coupled with the fact that years have not changed the mind

and hearts for them to even consider the possibility of the first

informant getting her matrimonial right qua the husband who

has happily left her to fend her ways, the Court is of the firm

opinion that in such circumstances, the averments set-out in

the FIR will need investigation on urgent basis.

12. For the foregoing reasons, it is to be concluded that at

this stage, the FIR requires no indulgence on the part of the

Court. Resultantly, this petition is DISMISSED. The interim

relief granted stands vacated. The petitioners are already

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protected by way of a bail order.

13. The Investigating Officer shall be intimated of the

vacation of the stay by the learned Additional Public

Prosecutor so that it expedites the investigation and complete

the same at the earliest.

14. None of the findings and observations in this order shall

in any manner affect the right of the either side.

15. As the main matter is dismissed, the connected Civil

Applications, if any, also stands disposed of accordingly.

(SONIA GOKANI, J) Bhoomi