Madhya Pradesh High Court

Smt Lallita Kushwah Alis Foolwati ... vs The State Of Madhya Pradesh on 25 August, 2021

Author: Sushrut Arvind Dharmadhikari

          HIGH COURT OF MADHYA PRADESH,
                BENCH AT GWALIOR
                     M.Cr. C. No. 42123/2021
 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)
                                  (1)

Gwalior, dated : 25.08.2021

      Ms. Anu Bhatnagar, Advocate for the petitioner.

      Shri P.P.S. Vajeeta, Public Prosecutor for the respondent/State.

The petitioner has filed this petition under Section 482 of

Cr.P.C. seeking direction to the respondents authorities to arrest the

the respondents No. 5 & 6 in relation to Crime No. 28/2020

registered at Police Station- Billaua, District Gwalior (M.P.) for the

offence punishable under sections 498-A, 294, 506, 34 of IPC and

also to file charge sheet against the respondents No. 5 & 6 before

the competent court having criminal jurisdiction.

Brief facts leading to filing of this petition are that the

petitioner has solemnized marriage with the respondent No. 5 on

26/04/2016 at Nagar Panchayat, Billaua. After marriage, the

petitioner came to her in-laws house on 27/06/2016 and stayed there

for one year. During stay of the petitioner in her matrimonial home,

she was subjected to dowry demand related cruelty. The respondent

Nos. 5 and 6 and other in-laws of the petitioner harassed and tortured

the petitioner for demand of dowry of Rs. One Lakh and a Car.

Therefore, the petitioner has left with no other option, but to leave

her matrimonial home. Thereafter, the respondent No. 5 asked for

compromise and settle the matter before the family court, but inspite

of several meetings, the respondent No. 5 did not settle the matter

since the respondent No. 5 insisted the petitioner for bringing said

dowry, which was denied by her. Thereafter, on 14/02/2020, the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

petitioner has approached the police station concerned and requested

the police officials to lodge an FIR against the respondent Nos. 5 &

6 and other in-laws of the petitioner, but an FIR bearing Crime No.

28/2020 was registered at Police Station- Billaua, District Gwalior

(M.P.) for the offence punishable under sections 498-A, 294, 506, 34

of IPC against the respondents No. 5 & 6 only.

Learned counsel for the petitioner submits that the Police

Authorities having hand-in-glove with the respondent Nos. 5 & 6

refused to register an FIR against other in-laws of the petitioner.

Learned counsel for the petitioner further contends that FIR was

lodged on 14/02/2020 at crime No. 28/2020, but the investigation is

going on at a snail pace and the respondents No. 5 & 6 have not been

arrested by the police. The respondent No. 5, who is husband of the

petitioner is working as a constable bearing batch No. 1115 in the

police department and, therefore, the police authorities are protecting

the respondents No. 5 & 6 and are not arresting them and they are

moving freely in the society. The petitioner has made

representations (Annexure P/3 & P/4) to the police Authorities for

taking action into the matter, but no action whatsoever has been

taken thereupon. Accordingly, it is prayed that respondents/Police

Authorities may be directed to arrest the respondents No. 5 & 6 in

relation to Crime No. 28/2020 registered at Police Station- Billaua,

District Gwalior (M.P.) for the offence punishable under sections

498-A, 294, 506, 34 of IPC and to file charge sheet against the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

respondents No. 5 & 6 before the competent court having criminal

jurisdiction.

Per contra learned Public Prosecutor for the respondent/State

contends that the relief prayed in this petition cannot be granted to

the petitioner in view of the fact that petitioner is having an

alternative efficacious remedy of filing complaint before the

Magistrate under section 156(3) of the Cr.P.C. As such, the present

petition is liable to dismissed at the threshold.

Heard learned counsel for the rival parties.

The Supreme Court in the case of D. Venkatasubramaniam

v. M.K. Mohan Krishnamachari ((2009) 10 SCC 488) has held as

under :-

''19. The High Court, within a period of one month from the date of filing of the petition, finally disposed of the same observing that, "it is obligatory on the part of the respondent police to conduct investigation in accordance with law, including recording of statements from witnesses, arrest, seizure of property, perusal of various documents and filing of chargesheet. It is also needless to state that if any account is available with the accused persons, or any amount is in their possession and any account is maintained in a nationalised bank, it is obligatory on the part of the respondent police to take all necessary steps to safeguard the interest of the aggrieved persons in this case".

The Court accordingly directed the police to expedite and complete the investigation within six months from the date of receipt of a copy of the order. The said order of the High Court is impugned in these appeals.

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25. It is the statutory obligation and duty of the police to investigate into the crime and the courts HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

normally ought not to interfere and guide the investigating agency as to in what manner the investigation has to proceed. In M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 this Court observed: (SCC pp. 657- 58, para 14) "14. ... 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."

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31. The High Court, without recording any reason whatsoever, directed the police that it is obligatory on their part to record statements from witnesses, arrest, seizure of property and filing of charge sheet. It is difficult to discern as to how such directions resulting in far reaching consequences could have been issued by the High Court in exercise of its jurisdiction under Section 482 of the Code. The High Court interfered with the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

investigation of crime which is within the exclusive domain of the police by virtually directing the police to investigate the case from a particular angle and take certain steps which the police depending upon the evidence collected and host of other circumstances may or may not have attempted to take any such steps in its discretion.

32. It is not necessary that every investigation should result in arrest, seizure of the property and ultimately in filing of the charge sheet. The police, in exercise of its statutory power coupled with duty, upon investigation of a case, may find that a case is made out requiring it to file charge sheet or may find that no case as such is made out. It needs no reiteration that the jurisdiction under Section 482 of the Code conferred on the High Court has to be exercised sparingly, carefully and with caution only where such exercise is justified by the test laid down in the provision itself.

33. Yet another aspect of the matter, the appellants have not been impleaded as party respondents in the criminal petition in which the whole of the allegations are levelled against them. The High Court never thought it fit to put the appellants on notice before issuing appropriate directions to the police to arrest, seize the property and file charge sheet. This Court in Dinine Retreat Centre V. State of Kerala & Ors. (2008) 3 SCC 542 observed: (SCC p.565, para 51) "51..........We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such (2008) 3 SCC 542 order results in drastic consequences of affecting one's own reputation."

(emphasis is of ours)

34. The High Court in the present case, without realizing the consequences, issued directions in a casual and mechanical manner without hearing HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

the appellants. The impugned order is a nullity and liable to be set aside only on that score.

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36.The power under Section 482 of the Code can be exercised by the High Court either suo motu or on an application (i) to secure the ends of justice;

(ii) the High Court may make such orders as may be necessary to give effect to any order under the Code; (iii) to prevent abuse of the process of any Court. There is no other ground on which the High Court may exercise its inherent power.

37. In the present case, the High Court did not record any reasons whatsoever why and for what reasons, the matter required its interference. The High Court is not expected to make any casual observations without having any regard to the possible consequences that may ensue from such observations. Observations coming from the higher Courts may have their own effect of influencing the course of events and process of law. For that reason, no uncalled for observations are to be made while disposing of the matters and that too without hearing the persons likely to be affected. The case on hand is itself a classic illustration as to how such observations could result in drastic and consequences of far reaching in nature. We wish to say no more.

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42. For the aforesaid reasons, we find it difficult to sustain the impugned judgment of the High Court. Leave granted. The appeals are accordingly allowed and the impugned order is set aside. '' Thus, this Court cannot supervise the investigation and giving a direction to arrest the accused and file the charge sheet would certainly amount to supervising the investigation. Section 173(1) of Cr.P.C. reads as under : "173. Report of police officer on completion of investigation.-- (1) Every investigation under this Chapter shall be completed without unnecessary delay."

Thus, completion of investigation without unnecessary delay

is the mandate of the law. The Investigating Officer cannot keep the

investigation pending and he has to come to a conclusion that HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr. C. No. 42123/2021 (Smt. Lalita Kushwah @ Foolwati Vs. The State of Madhya Pradesh & Ors.)

whether any offence is made out or not? It is obligatory on the part

of the Investigating Officer to conclude the investigation, as early as

possible without any delay. Thus, this petition is disposed of in the

light of the mandatory provision of Section 173(1) of Cr.P.C. and the

Investigating Officer is directed to conclude the investigation as

early as possible and to take necessary steps as required under the

law.

The prayer with regard to arresting the accused

persons/respondents No. 5 & 6 cannot be granted inasmuch as the

statutory, efficacious and alternative remedy of filing a complaint

before the Magistrate under section 156 (3) of Cr.P. C. is available to

the petitioner.