Dr. Anand Rai vs The State Of Madhya Pradesh
2022 Latest Caselaw 4720 MP

                              1




        IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                           BEFORE
            HON'BLE SHRI JUSTICE VISHAL MISHRA
                  ON THE 4th OF APRIL, 2022
                WRIT PETITION No. 7744 of 2022
Between:-
DR. ANAND RAI S/O SHRI A.N. RAI , AGED ABOUT 45 YEARS,
OCCUPATION: DOCTOR R/o 85 SAMPAT HILLS, BICHOLI
MARDANA, DISTRICT INDORE (MADHYA PRADESH)

                                              .....PETITIONER

(BY SHRI VIVEK TANKHA, SENIOR COUNSEL WITH SHRI
VARUN TANKHA, ADVOCATE )

AND
1. THE STATE OF MADHYA PRADESH THROUGH STATION
HOUSE OFFICER POLICE STATION AJK BHOPAL (MADHYA
PRADESH)

2. LAXMAN SINGH MARKAM S/O SHRI RAJENDRA SINGH
MARKAM R/O D 3/17, NEAR FOOTBALL GROUND, CHAR
IMLI, HABIBGANJ, BHOPAL, M.P. (MADHYA PRADESH)

                                            .....RESPONDENTS


(BY SHRI TUSHAR MEHTA, SOLICITOR GENERAL WITH SHRI
PRASHANT SINGH, ADVOCATE GENERAL, SHRI HARPREET
RUPRAH, ADDITIONAL ADVOCATE GENERAL, SHRI BHARAT
SINGH, ADDITIONAL ADVOCATE GENERAL AND SHRI
PIYUSH JAIN, GOVT. ADVOCATE)

(BY SHRI ANIL KHARE, SENIOR COUNSEL WITH SHRI UMA
SHANKAR TIWARI, FOR RESPONDENT NO.2)
**********************************************************
      This petition coming on for admission this day, the court
                                 2




passed the following:
                            ORDER

With the consent of the parties, the matter is being taken up for consideration on the question of admission.

Challenge is being made to FIR dated 27.03.2022 registered at Crime No.2/2022 for offences under Sections 419, 469, 470, 500, 504, 120-B of Indian Penal Code and Section 3 (1)(q), 3 (1) (Da) and Section 3 (2) (va) and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station A.J.K., District Bhopal.

2. It is argued that the petitioner is a whistleblower who was instrumental in exposing the Vyapam Scam. It is pointed out that due to persistence of the petitioner, the whole Vyapam Scam was unearthed and later on, it was investigated by the Central Bureau of Investigation. In the present case, the FIR has been registered against the petitioner by the respondent No.2, alleging that he is a public servant and employed in Indian Naval Armament Services (INAS) and currently holding the post of Under Secretary with the State of Madhya Pradesh. It is alleged that the petitioner has defamed the complainant by posting wrong information on the social media and in furtherance to the same, some contents were posted on the Facebook on 26.03.2022, after manipulating the original contents and using abusive language making a statement in terms of caste of the complainant. Pursuant to which, the FIR was registered against him. The petitioner is trying to defame the complainant by preparing forged screenshot and by further implying that the complainant is leaking the papers with regard to

examination of Varg-III. It is argued that the allegation which has made against the petitioner is posting the content of the Facebook which reads as under :-

"oxZ 3 dk isij] yDl eu eRdke ds eksckby rd dSls igq¡pk bldh tk¡p gksuh pkfg, #O;kiea dbZ vH;fFkZ;ksa us OgkV~l,Ii ij ;g QksVks miyC/k djk, gSa] bl ?kksVkys dh CBI tk¡p gksuh pkfg,] foxr fnuksa jktLFkku esa Hkh blh rjg REET ?kksVkyk gqvk FkkA"

3. It is argued that from the perusal of the aforesaid content it cannot be said that any offence is made out against the present petitioner, therefore, the present petition has been filed. It is submitted that even if the Facebook contents are taken into consideration as a toto, then no offence is made out against the petitioner. The petitioner submits that he has been falsely prosecuted and no offence of alleged Sections are made out against him. There is not even a whisper with respect to any intention of the petitioner to do such an act knowing fully well that complainant is a member of Scheduled Caste and Scheduled Tribe or with an intention to insult or intimate or give a false and frivolous information knowing fully well that the complainant is a member of Scheduled Caste and Scheduled Tribe. The petitioner being a whistleblower is required to place the correct contents before the public, so that the actual facts may be brought to notice of the general public at large. It is submitted that it was the petitioner who was active in unearthing the Vyapam Scam and similar case was exposed in Rajasthan REET scam by the petitioner, therefore, the investigation should be done in the matter.

The offences which have been registered against the petitioner are under Sections 419, 469, 470, 500, 504, 120-B of Indian Penal Code and Section 3 (1)(q), 3 (1)(Da) and Section 3 (2) (va) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The petitioner is not the maker of the messages which have been floated on the Whatsapp or Facebook, rather he has only forwarded the messages which was received to him, therefore, no such offence is made out against him. He is unnecessarily being harassed and put to prosecution by the State Agencies owing to some political pressure. Placing reliance upon the aforesaid sections, it is argued that no case is made out against the petitioner. Therefore, he has prayed for quashment of FIR registered against the petitioner. Placing reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Shreya Singhal Vs. Union of India reported in (2015) 5 SCC 1 and K.K.Mishra Vs. State of Madhya Pradesh and another reported in (2018) 6 SCC 676, it is argued that from the perusal of the FIR when no offence is made out then the interference under Section 482 of Cr.P.C. or Article 226 of the Constitution of India should have been made in the matter. The matter deals with personal life and liberty of a person which has to be taken care of by the Courts. It is argued that the action taken by the respondents in registering an FIR against the petitioner is clearly hitting the Article 19(1)(a) and 19(2) of the Constitution of India as the law restricting freedom of speech and expression cannot pass muster merely if it is in the interest of general public. The grounds for testing the reasonableness of restrictions on freedom of speech and expression cannot be dehors

the Article 19(2) of the Constitution of India. Freedom of speech and expression of an opinion is a paramount importance under a democratic Constitution which envisages changes in composition of legislation and Government and must be preserved, it lies in the foundation of all the democratic organisations. Public criticism is essential for working of an institution. This right requires the free flow and opinions and ideas essential to sustain the collective live of citizenry while an informed citizenry is a precondition for meaningful governance, the culture of open dialogue is generally of great importance. The aforesaid aspect was held by the Hon'ble Supreme Court in the case of Shreya Singhal (supra) and the FIR was quashed in the aforesaid matter. In such circumstances, no case is made out against the petitioner who being a whistleblower is trying to take the correct facts before the public at large.

4. Per contra, learned Solicitor General along with learned Advocate General of the State have vehemently opposed the contentions and submits that the petition itself is not maintainable under Article 226 of the Constitution of India. It is pointed out that the conduct of the petitioner is required to be seen in the present matter. It is pointed out that the petitioner has posted certain contents on the Facebook page on 26.03.2022 and in pursuance to the same an FIR has been registered against the present petitioner on 27.03.2022; and the present petition has been filed on 30.03.2022. It is pointed out that within a short period of three days the present petition was preferred without even waiting for the inquiry to be conducted into the matter. The counsel for the petitioner has not even supplied copy of the petition along with

annexures to the Advocate General office and the matter was listed for hearing on 01.04.2022. An objection was taken by the State counsel and has prayed for listing of the matter on 04.04.2022, but on the prayer made by the counsel appearing for the petitioner, the order has been passed granting interim relief to the petitioner that no coercive action to be taken against the petitioner, till the next date of hearing. It is argued that such kind of practice is not permissible and is being turned down by the Hon'ble Supreme Court on several occasions and by making certain observations.

5. Placing reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in 2021 SCC Online SC 315, wherein after detailed analysis the Hon'ble Supreme Court has framed certain guidelines and conclusions for consideration of the matters by all the High Courts in the country that what steps are to be taken while considering the applications for quashment of FIR under Section 482 of Cr.P.C. and Article 226 of the Constitution of India. It is argued that the powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India to quash the First Information Report is to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. Placing reliance upon the judgment in the case of State of Telangana Vs. Habib Abdullah Jeelani reported in (2017) 2 SCC 779, it is submitted that the counsel appearing for the State was not even supplied with the copy of the petition then also an order not to take any coercive steps against the petitioner was passed by this Court. It is argued that within

three days of registration of an FIR, the writ petition was filed. Notices under Section 91 of Cr.P.C. dated 28.03.2022 and 30.03.2022 were issued to the petitioner for appearance along with all the relevant documents with respect to the aforesaid complaint for carrying out the proper investigation, but the petitioner has not complied with aforesaid notices and has chosen to file a present petition before this Court. He has not appeared before the authorities at any point of time. Thus, on one hand the petitioner is not cooperating with the investigation and on the other hand, he has filed a petition directly before this Court under Article 226 of the Constitution of India praying for quashment of FIR being not maintainable.

6. It is submitted that various High Courts have gone to the extent that the proceedings for quashment of the FIR should be exercised sparingly and in the rare cases. The investigation which is to be carried out by the Authority generally should not be interfered. In the case of State of Tamilnadu Vs. S. Martin reported in (2018) 5 SCC 718, it was held that during investigation the High Court ought not to have interfered in investigation and investigating agency ought to have been permitted to continue the investigation and come to a logical conclusion. It is argued that the investigation is yet to be carried out and it cannot be said at this stage whether the State Authorities are filing a charge sheet against the petitioner or filing a closure report looking to the contents of the complaint made by the respondent No.2 in the FIR. He has further placed reliance upon the judgment passed by the Supreme Court in Nivedita Sharma Vs. Cellular Operators Association

of India reported in (2011) 14 SCC 337, wherein the Hon'ble Supreme Court has observed that the party must exhaust statutory remedy available under the law before resorting to writ jurisdiction for a relief. The petitioner is having statutory remedy available under Section 438 of Cr.P.C. seeking an anticipatory bail, but instead of the same he has directly filed a writ petition under Article 226 of the Constitution of India. The provision of Section 482 of Cr.P.C. being inherent in nature are available to the petitioner seeking quashment of an FIR, but bypassing the legal statutory provisions which are available to the petitioner, the petitioner has directly filed a writ petition before this Court which is itself is not maintainable. It is further submitted that the case of the petitioner does not fall under the category of guidelines framed by the Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 wherein the Hon'ble Supreme Court has categorically held that power of quashing criminal proceedings should be exercised sparingly and with circumspection that too in rare of the rarest cases. In such circumstances no case for interference is made out in the present writ petition.

7. It is pointed out that recently the Hon'ble Supreme Court in the case of Neeharika Infrastructure (supra) has laid down the guidelines for consideration of the Court exercising inherent powers under Section 482 of Cr.P.C. or Article 226 of the Constitution of India for quashment of the criminal proceedings. The aforesaid guideline are required to be followed. He has heavily placed reliance on para 80, sub para xvi, xvii and xviii of

the judgment in the case of Neeharika Infrastructure (supra) and has argued that no such order for taking coercive action against the petitioner can be passed in a casual manner. It is argued that looking to the contents of the complaint as well as the FIR which has been registered against the petitioner clearly a case of cognizable offence is made out for which investigation is required in the matter. In such circumstances, no case for interference in the present petition is made out. They have prayed for dismissal of the petition. It is argued that as the investigation is yet to be carried out in the matter, therefore, no case for interference is made out placing reliance upon the aforesaid judgments. It is further argued that by directing that no coercive action should be taken against the petitioner virtually the provisions of Section 438 of Cr.P.C. is acted upon by this Court without there being any application for grant of anticipatory bail. The aforesaid aspect was taken into consideration by the Hon'ble Supreme Court and was highly condemned and it was directed that normally the High Court should not pass such orders for taking no coercive action in a casual manner. It is further observed that the recourse to the statutory provisions should be adopted by the applicants or the petitioners. He has prayed for dismissal of the writ petition.

8. Learned Advocate General appearing for the State of Madhya Pradesh has drawn attention of this Court to the fact that the petitioner is habitual of making such derogatory statements and of uploading such contents on social platform for which on earlier occasion an FIR was also registered against the petitioner, which is filed along with the copy of the short return for taking documents

on record. Learned Solicitor General has contended that looking to the offences which have been registered against the petitioner prima facie cognizable offences is made out for which action is required to be taken and investigation is required to be done into the matter.

9. Learned Advocate General has drawn attention of this Court to the document that a defamatory note which has been uploaded by the petitioner which is a part of charge sheet and which reads as under :-

"oxZ 3 dk isij] yDl eu eRdke ds eksckby rd dSls igq¡pk bldh tk¡p gksuh pkfg, #O;kiea dbZ vH;fFkZ;ksa us OgkV~l,Ii ij ;g QksVks miyC/k djk, gSa] bl ?kksVkys dh CBI tk¡p gksuh pkfg,] foxr fnuksa jktLFkku esa Hkh blh rjg REET ?kksVkyk gqvk FkkA"

10. It is argued that the words which have been used clearly attracts the provision of SC/ST Act as there are very defamatory and derogatory language in the State of Madhya Pradesh. It is argued that the name of respondent No.2 is Laxman Singh Markam but the word which has been used is 'Matkam' which is a defamatory and derogatory language in the State of Madhya Pradesh. Therefore, prima facie case of SC/ST Act is clearly made out against the petitioner. The notices under Section 91 of Cr.P.C. were issued to the petitioner on 28.03.2022 and 30.03.2022 and he was asked to come to the police authorities along with all the relevant documents but he has not complied with the aforesaid and has directly filed the petition before this Court, on which an order was passed on 01.04.2022 for not taking coercive action against

the petitioner. He has relied upon the judgment passed by the Hon'ble Supreme Court in Habib Abdullah Jeelani (supra) and argued that no such orders should be passed.

11. Counsel appearing for the respondent No.2 has opposed the prayer of the petition and has supported the arguments of the Solicitor General as well as the Advocate General of the State and has submitted that investigation is yet to be carried out in the matter. At this stage, it cannot be ascertain that whether the authorities are filing a charge sheet against the petitioner or closure report is being submitted. Issuance of direction for taking no coercive action is also not permissible in view of the law laid down by the Hon'ble Supreme Court in the case of Neeharika (supra) as well as Habib Abdullah Jeelani (supra) wherein the Hon'ble Supreme Court has highly condemned the issuance of directions by the High Courts in a casual manner. It is submitted that the statutory provisions are available and the petitioner should adhere to the statutory provisions available to him under law and should have atleast filed an application for grant of anticipatory bail under Section 438 of Cr.P.C. without even approaching the competent Courts for availing the anticipatory bail, he has directly filed this petition under Article 226 of the Constitution of India. There are statutory provisions under Section 482 of Cr.P.C. for seeking for quashment of an FIR, bypassing the statutory provisions this petition under Article 226 of the Constitution of India has been filed seeking quashment of the proceedings along with an FIR which is not permissible, he has prayed for dismissal of the writ petition.

12. Heard the learned counsel for the parties and perused the record.

13. From the perusal of the record, it is not disputed that in pursuance to Facebook post on 26.03.2022 an FIR was registered against the petitioner at Crime No.2/2022 for offences under Section Sections 419, 469, 470, 500, 504, 120-B of Indian Penal Code and Section 3 (1)(q), 3 (1)(Da) and Section 3 (2) (va) and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station A.J.K., District Bhopal. It is seen that this petition was filed within three days for seeking quashment of an FIR and for grant of interim relief. The matter was listed for hearing on 01.04.2022 and the coordinate Bench of this Court has passed an order "That till the next date of hearing, no coercive action be taken against the petitioner."

14. The Cause list shows that there was a default in not supplying the copy to the learned Advocate General office. Therefore, the matter was placed for hearing on 04.04.2022. It is submitted by the counsel that now the copy is being supplied, therefore, the matter was taken up hearing on the question of admission. This is a petition under Article 226 of the Constitution of India seeking quashment of an FIR registered at Crime No.2/2022 for the offence Sections 419, 469, 470, 500, 504, 120-B of Indian Penal Code and Section 3 (1)(q), 3 (1)(Da) and Section 3 (2) (va) and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station A.J.K., District Bhopal. Facebook contents which have been uploaded by the petitioner reflects that certain defamatory words are being used as pointed

out by the learned Advocate General.

15. From the perusal of the aforesaid dictum by the Hon'ble Supreme Court it is apparently clear that no such orders for not arresting or not taking any coercive action can be passed in the pending investigation into the matter. The petitioner is having a remedy to approach the concerning Courts by filing an anticipatory bail application under Section 438 of Cr.P.C. and thereafter can take a recourse under Section 482 of Cr.P.C. wherein the High Court is having an inherent power for quashment of FIR but in the present case within three days from the date of registration of FIR this petition under Article 226 of the Constitution of India has been filed seeking quashment of FIR, pointing out the fact that the petitioner is unnecessarily being harassed but the fact remains that bare perusal of the complaint as well as FIR which has been registered against the petitioner prima facie makes out a cognizable case for which investigation is required in the matter.

16. The issuance of such orders by High Court was taken into consideration by the Supreme Court in the case of Habib Abdullah Jeelani (supra) and was again taken note of by the Hon'ble Supreme Court in the case of Neeharika (supra) which reads as under :-

"67. This Court in the case of Habib Abdullah Jeelani (supra), as such, 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 the petitioners 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.

68. 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 de hors 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 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."

69. 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.

70. In the recent decision of this Court in the case of Ravuri Krishna Murthy (supra), this bench set aside the similar order passed by the Andhra Pradesh High Court of granting a blanket order of protection from arrest, even after coming to the conclusion that no case for quashing was established. The High Court while disposing of the quashing petition and while refusing to quash the criminal proceedings in exercise of powers under Section 482 Cr.P.C. directed to complete the investigation into the crime without arresting the second petitioner - A2 and file a final report, if any, in accordance with law. The High Court also further passed an order that the second petitioner - A2 to appear before the investigating agency as and when required and cooperate with the investigating agency. After considering the decision of this Court in the case of Habib Abdullah Jeelani (supra), this Court set aside the order passed by the High Court restraining the investigating officer from arresting the second accused.

71. Thus, it has been found that despite absolute proposition of law laid down by this Court in the case of Habib Abdullah Jeelani (supra) that such a blanket order of not to arrest till the investigation is completed and the final report is filed, passed while declining to quash the criminal proceedings in exercise of powers under Section 482 Cr.P.C, as observed hereinabove, the High Courts have continued to pass such orders. Therefore, we again reiterate the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and we direct all the High Courts to scrupulously follow the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and the law laid down by this Court in the present case, which otherwise the High Courts are bound to follow. We caution the High Courts again against passing such orders of not to arrest or "no coercive steps to be taken" till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India.

72. Now so far as the legality of the impugned interim order passed by the High Court directing the investigating agency/police "not to adopt any coercive steps" against the accused is concerned, for the reasons stated hereinbelow, the same is unsustainable:

i) that such a blanket interim order passed by the High Court affects the powers of the investigating agency to investigate into the cognizable offences, which otherwise is a statutory right/duty of the police under the relevant provisions of the Cr.P.C.;

ii) that the interim order is a cryptic order;

iii) that no reasons whatsoever have been assigned by the High Court, while passing such a blanket order of "no coercive steps to be adopted" by the police;

iv) that it is not clear what the High Court meant by passing the order of "not to adopt any coercive steps", as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of "no coercive steps to be adopted". If the High Court meant by passing such an interim order of "no coercive steps" directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable. It has affected the right of the investigating agency to investigate into the cognizable offences. While passing such a blanket order, the High Court has not indicated any reasons."

17. The aforesaid aspect was considered by the Hon'ble Supreme Court in the case of Neeharika Infrastructure (supra) wherein after a detailed analysis of various provisions of criminal law and various judgments passed by the Hon'ble Supreme Court has drawn conclusion in para 80 of the judgment which reads as under :-

"80. 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;

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 jurisdiction 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 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 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."

18. It is seen that the Hon'ble Supreme Court in the aforesaid case has gone to an extent that no such orders not to arrest or no coercive steps either during the investigation or till the investigation is completed or till the final report or charge sheet is being filed under Section 173(3) of Cr.P.C. while dismissing or

disposing of the quashing of petition shall be passed under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India. The Hon'ble Supreme Court has further observed that even in a case where the High Court is prima face of the opinion that an exceptional case is made out for grant of interim stay of further investigation after considering the broad para meters then also the reasons are required to be recorded while passing an interim order so that it can demonstrate the application of mind by the learned Court. It is seen from the order dated 01.04.2022 that an order has been passed not to take any coercive action against the petitioner but no reasons have been assigned in the impugned order. Even in the contention of the learned Solicitor General and learned Advocate General of the State of Madhya Pradesh, it is pointed out that copy of the petition along with annexrues are not even supplied to them to argue on the issue and they have only prayed for an adjournment on that date but the Court has passed an interim order in the matter. In such circumstances, when clearly a case of cognizable offence is made out no such blanket orders can be passed. The authorities are required to complete an investigation into the matter and person showing himself to be an innocent person can take a recourse under the relevant provisions of criminal law that is under Section 438 of Cr.P.C. for seeking an anticipatory bail in the matter.

19. There are specific allegations against the petitioner that he has manipulated the Facebook contents and has re-posted the same. It is even apparent that some words derogatory in nature to the SC/ST community is being used by the petitioner and is being

posted in a public platform which clear attracts the provisions of SC/ST Act as is reflected from the complaint as well as from the FIR.

20. The Hon'ble Supreme Court in the case of Nivedita Sharma (supra) has held that "where hierarchy of appeals was provided by the statute, a party must exhaust the statutory remedies before resorting to writ jurisdiction for relief, but inspite of having alternative remedy the writ petition has been preferred seeking multiple reliefs, therefore, the petition was not entertained being devoid of merits is not maintainable and is dismissed." In the present case, without exhausting the remedy of seeking anticipatory bail under Section 438 of Cr.P.C. or approaching this Court by way of filing a petition under Section 482 of Cr.P.C. petition seeking quashment of an FIR or a criminal proceedings, he has taken a recourse to file a writ petition under Article 226 of the Constitution of India.

21. Looking to the contents of the FIR, a prima facie case is made out against the petitioner, which requires a detailed investigation to be carried out by the Authorities. In such circumstances, the case does not fall under the category of rarest of the rare cases, therefore, the relief praying for quashment of FIR and for interim relief not to take any coercive action, without adhering to the statutory provisions of criminal jurisprudence, this relief cannot be extended to the petitioner.

22. In the case of S. Martin (supra) the Hon'ble Supreme Court has held that during investigation High Court ought not to have interfered in the investigation and the Investigating Agency should

be allowed to complete the investigation and come out with a logical conclusion. In the present case, the authorities are yet to arrived at a logical conclusion whether they will file a charge sheet against the petitioner or they will file a closure report against the petitioner. The petitioner has not complied with the notices which have been issued to him under Section 91 of Cr.P.C. and has not cooperated with the investigation and on the other hand he has approached this Court by filing a petition under Article 226 of the Constitution of India seeking quashment without availing the remedy of seeking an anticipatory bail under Section 438 of Cr.P.C. and in such circumstances, this Court refrains from entertaining the writ petition.

23. The petition being meritless, devoid of substance is hereby dismissed. Interim relief granted to the petitioner is hereby vacated.

24. However, the petitioner is at liberty to file appropriate application under Section 438 of Cr.P.C. seeking anticipatory bail and thereafter may file an application under Section 482 of Cr.P.C. seeking quashment of FIR.

25. With aforesaid observations, the petition stands dismissed.

(Vishal Mishra) Judge

AM.

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2022.04.06 18:43:57 +05'30'