Jharkhand High Court

Mahesh Tewari vs The State Of Jharkhand on 30 September, 2021

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(Cr.) No. 290 of 2021

Mahesh Tewari, aged about 63 years, son of late Sudhanshu Shekhar Tewari,
resident of D/4, 3G, SAIL City, P.O. and P.S. Pundag, District-Ranchi
                         ...... Petitioner
                          Versus
1.The State of Jharkhand
2.The Secretary, Home , Government of Jharkhand, Ranchi
3. The Director General of Police, Ranchi
4. The Deputy Inspector General of Police, Jharkhand, Ranchi
5. The Senior Superintendent of Police, Ranchi
6. Sri Abhay Kumar Singh, Officer Incharge, Jagarnnnathpur Police Station,
Ranchi
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner       : In Person
For the State            : Mr. Kaushik Sarkhel, G.A.-V

04/Dated: 30/09/2021

Heard the petitioner in person and Mr. Kaushik Sarkhel learned

counsel for the State.

2. This petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard.

3. The present petition has been filed for direction upon the

respondents particularly respondent nos. 2 and 3 to send to this Hon'ble Court

all records appertaining to issuance of non-bailable warrant of arrest as against

these warrantee named below:-

            i.        Kashi Nath Mukherjee

            ii.       Abhay Kumar Mishra

            iii.      Malay Kumar Nandi

            iv.       Aditya Kumar Banerjee

            v.        Gautam Das

Further prayer has been made as to what action for apprehending

them pursuant to the non-bailable warrant of arrest issued as against them vide

order dated 24.08.2021, has been taken.

4. Petitioner appearing in person submits that earlier he has moved

W.P.(Cr). No. 429 of 2018 which was disposed of vide order dated 27.09.2019

on the assurance that investigation shall be completed within two months. He

further submits that the investigation was not completed, hence he filed

Contempt Case (Civil) No. 145 of 2021 which was disposed of vide order dated

09.07.2021 on the assurance of S.S.P., Ranchi that the investigation will be

completed at the earliest. He submits that now the concerned court has

issued N.B.W. on 24.08.2021 against the accused persons and inspite of that no

action has been taken. He draws attention of the Court to para 14 of the writ

petition and submits that one of the accused persons namely, Abhay Kumar

Mishra was present in Jagarnathpur police station on 28.08.2021 inspite of

issuance of non-bailable warrant of arrest and he has not been arrested. The

petitioner appearing in person relied upon judgment in the case of

"Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra &

Others" reported in 2021 SCC Online SC 315 particularly para 24 & 25

wherein the Hon'ble Supreme Court has held as under:-

"24. Learned Advocates appearing on behalf of respondent nos. 2 to 4 herein original accused original writ petitioners have submitted that as held by this Court in catena of decisions, the powers possessed by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India are very wide. It is submitted that as held by this Court, the High Court may exercise its powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice. It is submitted therefore in exercise of its wholesome powers, the High Court would be justified and entitled to quash the proceedings. It is submitted that similarly the High Court would be justified and entitled to stay the further investigation and even grant an interim order of stay of arrest and/or no coercive measures to be taken.

25. It is submitted that in the case of State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699, it is observed by this Court that the High Court in its inherent powers is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution."

5. Relying on the aforesaid judgment, the petitioner appearing in

person submits that this writ petition is maintainable.

6. Mr. Kaushik Sarkhel, learned counsel for the respondent-State

submits that there are remedies available to the petitioner under Code of

Criminal Procedrue and this petition is not maintainable under Article 226 of the

Constitution of India.

7. Mr. Ajit Kumar, learned senior counsel submits that one of the

accused has approached before this Court in Cr.M.P. No. 1990 of 2021 and that

case is coming in the month of October, 2021. He submits that there is interim

protection so far the petitioner in that case is concerned. He submits that in

that view of the matter this petition is not maintainable.

8. In view of the above facts and considering the arguments of Mr.

Mahesh Tewari, it transpires that observations in order dated 27.09.2019

passed in W.P.(Cr). No. 429 of 2018 is in favour of the petitioner. There are

remedies available under the Cr.P.C. for taking action with regard to section 82,

83 Cr.P.C. The discretionary power should not be exercised mechanically and it

be exercised cautiously and circumspection. The Police officer is not always

bound to arrest an accused even if the allegation against him is of having

committed a cognizable offence. But when the Investigating Officer, having

regard to facts and circumstances, considered arrest of certain persons in a

case unnecessary, held, High Court under Article 226 of the Constitution of

India had no jurisdiction to direct the State to arrest those persons even though

the case was still at the stage of investigation as that would amount to

unjustified interference with the investigation. Merely because anticipatory bail

applications of those persons had been rejected that itself is not a ground for

directing their immediate arrest. Under Article 226 of the Constitution of India,

jurisdiction of High Court has been considered by the Hon'ble Supreme Court

in the case of " M.C. Abraham & Another Vs. State of Maharashtra &

Others" reported in (2003) 2 SCC 649 particularly in para 14 and 15 which is

quoted here-in-below:

"14. Tested in the light of the principles aforesaid, the impugned orders dated 10-1-2002 and 11-1-2002 must be held to be orders passed by overstepping the parameters of judicial interference in such matters. In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.

15. In the instant case the appellants had not been arrested. It appears that the result of the investigation showed that no amount had been defalcated. We are here not concerned with the correctness of the conclusion that the investigating officer may have reached. What is, however, significant is that the investigating officer did not consider it necessary, having regard to all the facts and circumstances of the case, to arrest the accused. In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case. The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the court on mere apprehension that he may be arrested. The court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected

may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations."

9. The Hon'ble Supreme Court has made guidelines in para 80 of

the " Neeharika Infrastructure Pvt. Ltd. Case (supra) . Para 80 (xii),

(xiii) and (xvi) is quoted here-in-below:-

"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 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;

(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 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.

10. The Hon'ble Supreme Court in para 80 (xvi) has held that 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 should

not be required to be passed routinely, casually and 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 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. Looking into the facts the

trial court proceeded and has taken steps. This judgment is not helping the

petitioner.

11. In view of above facts and considering that two orders passed by