Madhya Pradesh High Court
Avanish K. Arjaria vs The State Of Madhya Pradesh on 14 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:51406
1 W.P. No.29556/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 14th OF OCTOBER, 2024
WRIT PETITION No. 29556 of 2024
AVANISH K. ARJARIA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Ravindra Kumar Gupta - Advocate for the petitioners.
Shri Swapnil Ganguly - Deputy Advocate General for the
respondents/State.
............................................................................................................................................
ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following relief(s):-
1. To issue the writ of Mandamus & Quo-
warranto. To direct the respondent No.3 or their
subordinate Thana not to arrest the petitioner/
stay of arrest/ on cohesive action till disposal of
this petition or during investigation as the
petitioner are ready to cooperate to
investigating agency. and/or;
2. To direct to take action on complaint made to
Respondent no 3 dated 29.7.2024 (P/9) and
29.7.2024 (P/10) by the petitioner with other
ageents and employees/ Subhidha kendra
Manager and/or;
3. To direct to formulate SIT/ STF under this
Hon‟ble Court for further investigation into the
matter or after reopening the case or to transfer
to CBI for the same if deems fit and/or;
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4. To direct to safeguard the investors and their
deposits, all accounts in Banks/ Financial
institutions/ Cooperative Bank of Respondent
no 6 to 12 to be seized (requisite amount to the
extent of, to cover public money/ deposit) with
immediate effect of till completion of hearing
the petition and/or;
5. To direct in the called upon to explain the steps
taken or to be taken, into the matter from
Respondent no 1 to 5 on the complaints of the
petitioner; and to monitor the remedies and
steps taken by respondent time to time,
covering the whole issues as raised in this
petition and/or;
6. To direct to take action/ to investigate/
respondent no 5 under Multi State Cooperative
Societies Act 2002 and to submit their report;
7. Any other order/ or further order(s) as this
Hon‟ble Court may deem fit and proper in the
interest of justice.
2. It is the case of petitioners that petitioners had acted as Agents of
the company, which had de-frauded multiple innocent investors. One of
the investor, who was also a Journalist, made a complaint to the Police,
but no action was taken and accordingly, he approached this Court by
filing Writ Petition No.17126/2021 (PIL), which is pending and interim
directions have been issued to Union of India. State has filed reply in
favour of the depositors, but instead of arresting the main accused
(according to petitioners, respondents No.6 to 12), police is harassing
and arresting employees and Agents of the company including the
petitioners. Petitioners approached Superintendent of Police, Tikamgarh
and filed a complaint, but instead of making proper investigation, Police
is out and out to arrest the petitioners, who had merely acted as Agents
of the company, which has defrauded innocent investors and
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accordingly, this petition has been filed seeking the reliefs, as already
reproduced in the earlier part of the order.
3. Heard learned counsel for the petitioners.
4. The present petition has been filed in a most casual manner.
Copies of the FIRs which have been registered against the petitioners
have not been placed on record. One of the reliefs sought by the
petitioners is to issue a writ of mandamus and quo warranto.
5. Accordingly, counsel for petitioners was directed to address that
who is the respondent who does not hold the qualification to occupy the
public office.
6. It is submitted by counsel for petitioners that writ of quo warranto
be issued against Superintendent of Police, Tikamgarh.
7. Accordingly, counsel for petitioners was directed to point out
from the petition as to how the Superintendent of Police, Tikamgarh is
not eligible to hold the office of Superintendent of Police, Tikamgarh.
8. It is submitted by counsel for petitioners that since the
Superintendent of Police, Tikamgarh is not investigating the matter in
proper manner, therefore a writ of quo warranto be issued against him.
9. It appears that counsel for petitioners does not know the meaning
of writ of quo warranto.
10. After realizing his mistake, it was fairly conceded by counsel for
petitioners that writ of quo warranto has been wrongly prayed against
Superintendent of Police, Tikamgarh. However, it was submitted that a
wrong prayer was made under an impression that if a person is not
effectively discharging his duty then writ of quo warranto can be issued.
11. Since counsel for petitioners is accepting his mistake in praying
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for a writ of quo warranto against the Superintendent of Police,
Tikamgarh, therefore no further discussion is required on this issue, but
one thing is clear that prayer for issuance of writ of quo warranto against
Superintendent of Police, Tikamgarh is misconceived and there is no
allegation that the person holding the post of Superintendent of Police,
Tikamgarh is not eligible to hold the said post. Even the said person has
not been impleaded as a party in his personal capacity.
12. Faced with such a situation, counsel for petitioners seeks
withdrawal of prayer for issuance of writ of quo warranto.
13. Accordingly, prayer for issuance of writ of quo warranto is
dismissed as withdrawn.
14. As already pointed out, petitioners have not filed copies of FIRs
in which they are wanted by the Police. Admittedly, certain companies
which were floated in violation of law of the land and without
permission from the Reserve Bank of India to carry out the banking
activities, collected huge money from the innocent investors and
thereafter ran away. It was fairly conceded by counsel for petitioners
that petitioners were agents of such companies and apart from salary
they have also received commissions for the investments done by
innocent investors on the persuasion by the petitioners.
15. Since petitioners had also persuaded the innocent investors to
invest their hard earned money, therefore it cannot be said that they have
not committed any offence.
16. So far as the prayer for a direction to Police not to arrest the
petitioners is concerned, no such relief can be granted.
17. The Supreme Court in the case of Neeharika Infrastructure
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Private Limited Vs. State of Maharashtra and Others reported in
(2021) 19 SCC 401 has held as under:-
"23. So far as the order of not to arrest and/or "no
coercive steps" till the final report/charge-sheet is
filed and/or during the course of investigation or
not to arrest till the investigation is completed,
passed while dismissing the quashing petitions
under Section 482CrPC and/or under Article 226
of the Constitution of India and having opined that
no case is made out to quash the FIR/complaint is
concerned, the same is wholly impermissible.
24. This Court in Habib Abdullah Jeelani [State of
Telangana v. Habib Abdullah Jeelani, (2017) 2
SCC 779 : (2017) 2 SCC (Cri) 142], 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 482CrPC. In the
aforesaid case before this Court, the High Court
dismissed [Habib Abdullah Jeelani v. State of
Telangana, 2014 SCC OnLine Hyd 1299] the
petition filed under Section 482CrPC 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 438CrPC, 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
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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.
25. In the aforesaid decision, this Court has further
deprecated the orders passed by the High Courts,
while dismissing the applications under Section
482 CrPC 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 438CrPC. That thereafter,
this Court in para 25 has observed as under :
(Habib Abdullah Jeelani case [State of Telangana
v. Habib Abdullah Jeelani, (2017) 2 SCC 779 :
(2017) 2 SCC (Cri) 142] , SCC p. 794)
"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 mind that the culture of
adjudication is stabilised when
intellectual discipline is maintained and
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further when such discipline constantly
keeps guard on the mind."
26. We are at pains to note that despite the law laid
down by this Court in Habib Abdullah Jeelani
[State of Telangana v. Habib Abdullah Jeelani,
(2017) 2 SCC 779 : (2017) 2 SCC (Cri) 142],
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 482CrPC 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."
18. It is next contended by counsel for petitioners that Police may be
directed to investigate the matter freely and fairly or else, SIT, STF may
be constituted who should investigate the matter or the matter may be
transferred to CBI.
19. When specific question was put to counsel for petitioners that
whether accused has a right to file a petition for direction to the
investigating agency to investigate the matter as per the wishes of the
petitioners or not, then it was submitted by counsel for the petitioners
that this issue is not involved in the present case.
20. Whenever a query is put by the Court, then it is with a solitary
intention to give an opportunity to the counsel to meet out the legal or
factual provisions involved in the case. If a Lawyer is not ready to
answer that query, then petitioners have to face the consequences. Even
otherwise, an Advocate who has been engaged by the litigant is
supposed to be ready with all the legal provisions of law and he cannot
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arrogantly submit that since according to him any particular issue is not
involved in the case, therefore he is not supposed to give reply to said
query.
21. Be that whatever it may be.
22. The moot question for consideration is as to whether this Court
can direct for change of investigating agency or can allow the accused to
dictate its terms to Police to investigate the matter in a particular manner
or not? and;
Whether accused has any right to dictate as to how investigating
agency should investigate the matter?
23. In view of the admitted facts that the petitioners were agents of
the companies who have defrauded multiple innocent investors, prima
facie case is made out against them.
24. The Supreme Court in the case of Romila Thapar and others vs.
Union of India and others reported in (2018) 10 SCC 753 has held as
under:-
"23. After having given our anxious consideration to the
rival submissions and upon perusing the pleadings and
documents produced by both the sides, coupled with the
fact that now four named accused have approached this
Court and have asked for being transposed as writ
petitioners, the following broad points may arise for our
consideration:
23.1. (i) Should the investigating agency be changed at
the behest of the named five accused?
23.2. (ii) If the answer to Point (i) is in the negative, can a
prayer of the same nature be entertained at the behest of
the next friend of the accused or in the garb of PIL?
23.3. (iii) If the answer to Questions (i) and/or (ii) above,
is in the affirmative, have the petitioners made out a case
for the relief of appointing Special Investigating Team or
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directing the court-monitored investigation by an
independent investigating agency?
23.4. (iv) Can the accused person be released merely on
the basis of the perception of his next friend (writ
petitioners) that he is an innocent and law abiding person?
24. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada
Bai v. State of Gujarat, in para 64, this Court restated that
it is trite law that the accused persons do not have a say in
the matter of appointment of investigating agency.
Further, the accused persons cannot choose as to which
investigating agency must investigate the offence
committed by them. Para 64 of this decision reads thus:
(SCC p. 100)
"64. ... It is trite law that the accused persons do not
have a say in the matter of appointment of an
investigating agency. The accused persons cannot
choose as to which investigating agency must
investigate the alleged offence committed by them."
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the
Court restated that the accused had no right with reference
to the manner of investigation or mode of prosecution.
Para 68 of this judgment reads thus: (SCC p. 40)
"68. The accused has no right with reference to the
manner of investigation or mode of prosecution.
Similar is the law laid down by this Court in Union of
India v. W.N. Chadha, Mayawati v. Union of India,
Dinubhai Boghabhai Solanki v. State of Gujarat, CBI
v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S.
Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E.
Sivakumar v. Union of India, while dealing with the
appeal preferred by the "accused" challenging the order
of the High Court directing investigation by CBI, in para
10 observed: (SCC pp. 370-71)
"10. As regards the second ground urged by the
petitioner, we find that even this aspect has been duly
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considered in the impugned judgment. In para 129 of
the impugned judgment, reliance has been placed on
Dinubhai Boghabhai Solanki v. State of Gujarat,
wherein it has been held that in a writ petition seeking
impartial investigation, the accused was not entitled to
opportunity of hearing as a matter of course. Reliance
has also been placed on Narender G. Goel v. State of
Maharashtra, in particular, para 11 of the reported
decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the
stage of investigation. By entrusting the investigation
to CBI which, as aforesaid, was imperative in the
peculiar facts of the present case, the fact that the
petitioner was not impleaded as a party in the writ
petition or for that matter, was not heard, in our
opinion, will be of no avail. That per se cannot be the
basis to label the impugned judgment as a nullity."
27. This Court in Divine Retreat Centre v. State of Kerala,
has enunciated that the High Court in exercise of its
inherent jurisdiction cannot change the investigating
officer in the midstream and appoint an investigating
officer of its own choice to investigate into a crime on
whatsoever basis. The Court made it amply clear that
neither the accused nor the complainant or informant are
entitled to choose their own investigating agency, to
investigate the crime, in which they are interested. The
Court then went on to clarify that the High Court in
exercise of its power under Article 226 of the Constitution
can always issue appropriate directions at the instance of
the aggrieved person if the High Court is convinced that
the power of investigation has been exercised by the
investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs.
Committee for Protection of Democratic Rights, West
Bengal and Ors.13 In paragraph 70 of the said decision,
the Constitution Bench observed thus:
"70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
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Articles 32 13 (2010) 3 SCC 571 38 and 226 of the
Constitution, while passing any order, the Courts must
bear in mind certain self-imposed limitations on the
exercise of these Constitutional powers. The very
plenitude of the power under the said articles requires
great caution in its exercise. Insofar as the question of
issuing a direction to the CBI to conduct investigation
in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not
such power should be exercised but time and again it
has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party
has levelled some allegations against the local police.
This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident may
have national and international ramifications or where
such an order may be necessary for doing complete
justice and enforcing the fundamental rights. Otherwise
the CBI would be flooded with a large number of cases
and with limited resources, may find it difficult to
properly investigate even serious cases and in the
process lose its credibility and purpose with
unsatisfactory investigations."
29. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with
the crime under investigation, no specific material facts
and particulars are found in the petition about mala fide
exercise of power by the investigating officer. A vague
and unsubstantiated assertion in that regard is not enough.
39 Rather, averment in the petition as filed was to buttress
the reliefs initially prayed (mentioned in para 7 above) -
regarding the manner in which arrest was made. Further,
the plea of the petitioners of lack of evidence against the
named accused (A16 to A20) has been seriously disputed
by the Investigating Agency and have commended us to
the material already gathered during the ongoing
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investigation which according to them indicates
complicity of the said accused in the commission of
crime. Upon perusal of the said material, we are of the
considered opinion that it is not a case of arrest because of
mere dissenting views expressed or difference in the
political ideology of the named accused, but concerning
their link with the members of the banned organization
and its activities. This is not the stage where the efficacy
of the material or sufficiency thereof can be evaluated nor
it is possible to enquire into whether the same is genuine
or fabricated. We do not wish to dilate on this matter any
further lest it would cause prejudice to the named accused
and including the co-accused who are not before the
Court. Admittedly, the named accused have already
resorted to legal 40 remedies before the jurisdictional
Court and the same are pending. If so, they can avail of
such remedies as may be permissible in law before the
jurisdictional courts at different stages during the
investigation as well as the trial of the offence under
investigation. During the investigation, when they would
be produced before the Court for obtaining remand by the
Police or by way of application for grant of bail, and if
they are so advised, they can also opt for remedy of
discharge at the appropriate stage or quashing of criminal
case if there is no legal evidence, whatsoever, to indicate
their complicity in the subject crime.
30. In view of the above, it is clear that the consistent
view of this Court is that the accused cannot ask for
changing the Investigating Agency or to do investigation
in a particular manner including for Court monitored
investigation....................."
25. The Supreme Court in the case of Dinubhai Boghabhai Solanki
v. State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
"50. In W.N. Chadha [Union of India v. W.N. Chadha,
1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , the
High Court had quashed and set aside the order passed
by the Special Judge in charge of CBI matters issuing
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the order rogatory, on the application of a named
accused in the FIR, Mr W.N. Chadha. The High Court
held that the order issuing letter rogatory was passed in
breach of principles of natural justice. In appeal, this
Court held as follows: (SCC pp. 290-91 & 293, paras 89,
92 & 98)
"89. Applying the above principle, it may be
held that when the investigating officer is not
deciding any matter except collecting the materials
for ascertaining whether a prima facie case is made
out or not and a full enquiry in case of filing a report
under Section 173(2) follows in a trial before the
Court or Tribunal pursuant to the filing of the
report, it cannot be said that at that stage rule of audi
alteram partem superimposes an obligation to issue
a prior notice and hear the accused which the statute
does not expressly recognise. The question is not
whether audi alteram partem is implicit, but whether
the occasion for its attraction exists at all.
***
92. More so, the accused has no right to have any
say as regards the manner and method of
investigation. Save under certain exceptions under
the entire scheme of the Code, the accused has no
participation as a matter of right during the course
of the investigation of a case instituted on a police
report till the investigation culminates in filing of a
final report under Section 173(2) of the Code or in a
proceeding instituted otherwise than on a police
report till the process is issued under Section 204 of
the Code, as the case may be. Even in cases where
cognizance of an offence is taken on a complaint
notwithstanding that the said offence is triable by a
Magistrate or triable exclusively by the Court of
Sessions, the accused has no right to have
participation till the process is issued. In case the
issue of process is postponed as contemplated under
Section 202 of the Code, the accused may attend the
subsequent inquiry but cannot participate. There are
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various judicial pronouncements to this effect but
we feel that it is not necessary to recapitulate those
decisions. At the same time, we would like to point
out that there are certain provisions under the Code
empowering the Magistrate to give an opportunity
of being heard under certain specified
circumstances.
***
98. If prior notice and an opportunity of hearing
are to be given to an accused in every criminal case
before taking any action against him, such a
procedure would frustrate the proceedings, obstruct
the taking of prompt action as law demands, defeat
the ends of justice and make the provisions of law
relating to the investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant
statutory provisions relating to the procedure of
investigation does not attract such a course in the
absence of any statutory obligation to the contrary."
These observations make it abundantly clear that it
would not be necessary to give an opportunity of hearing
to the proposed accused as a matter of course. The Court
cautioned that if prior notice and an opportunity of
hearing have to be given in every criminal case before
taking any action against the accused person, it would
frustrate the entire objective of an effective
investigation. In the present case, the appellant was not
even an accused at the time when the impugned order
was passed by the High Court. Finger of suspicion had
been pointed at the appellant by independent witnesses
as well as by the grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh
Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) 88] , this
Court again reiterated the law as follows: (SCC pp. 256-
57, para 8)
"8. There is no merit in the pleas raised by the
first respondent either. The decision to investigate
or the decision on the agency which should
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investigate, does not attract principles of natural
justice. The accused cannot have a say in who
should investigate the offences he is charged with.
We also fail to see any provision of law for
recording reasons for such a decision. ... There is
no provision in law under which, while granting
consent or extending the powers and jurisdiction of
the Delhi Special Police Establishment to the
specified State and to any specified case any reasons
are required to be recorded on the face of the
notification. The learned Single Judge of the Patna
High Court was clearly in error in holding so. If
investigation by the local police is not satisfactory, a
further investigation is not precluded. In the present
case the material on record shows that the
investigation by the local police was not
satisfactory. In fact the local police had filed a final
report before the Chief Judicial Magistrate,
Dhanbad. The report, however, was pending and
had not been accepted when the Central
Government with the consent of the State
Government issued the impugned notification. As a
result, CBI has been directed to further investigate
the offences registered under the said FIR with the
consent of the State Government and in accordance
with law. Under Section 173(8) CrPC, 1973 also,
there is an analogous provision for further
investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the
Magistrate."
The aforesaid observations would clearly support the
course adopted by the High Court in this matter. We
have earlier noticed that the High Court had initially
directed that the investigation be carried under the
supervision of the Special Commissioner of Police,
Crime Branch, of the rank of the Additional Director
General of Police. It was only when the High Court was
of the opinion that even further investigation was not
impartial, it was transferred to CBI.
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52. Again in Sri Bhagwan Samardha [Sri Bhagwan
Samardha Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC
(Cri) 1047] , this Court observed as follows: (SCC pp.
742-43, paras 10-11)
"10. Power of the police to conduct further
investigation, after laying final report, is recognised
under Section 173(8) of the Code of Criminal
Procedure. Even after the court took cognizance of
any offence on the strength of the police report first
submitted, it is open to the police to conduct further
investigation. This has been so stated by this Court
in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2
SCC 322 : 1979 SCC (Cri) 479] . The only rider
provided by the aforesaid decision is that it would
be desirable that the police should inform the court
and seek formal permission to make further
investigation.
11. In such a situation the power of the court to
direct the police to conduct further investigation
cannot have any inhibition. There is nothing in
Section 173(8) to suggest that the court is obliged to
hear the accused before any such direction is made.
Casting of any such obligation on the court would
only result in encumbering the court with the burden
of searching for all the potential accused to be
afforded with the opportunity of being heard. As the
law does not require it, we would not burden the
Magistrate with such an obligation."
These observations also make it clear that there was no
obligation for the High Court to either hear or to make the
appellant a party to the proceedings before directing that
the investigation be conducted by CBI.
53. We had earlier noticed that the High Court had
come to the prima facie conclusion that the investigation
conducted by the police was with the motive to give a
clean chit to the appellant, in spite of the statements made
by the independent witnesses as well as the allegations
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made by the father of the deceased. The legal position has
been reiterated by this Court in Narender G.
Goel [Narender G. Goel v. State of Maharashtra, (2009) 6
SCC 65 : (2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, paras
11-13)
"11. It is well settled that the accused has no
right to be heard at the stage of investigation. The
prosecution will however have to prove its case at
the trial when the accused will have full opportunity
to rebut/question the validity and authenticity of the
prosecution case. In Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P. [Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999
SCC (Cri) 1047] this Court observed: (SCC p. 743,
para 11)
„11. ... There is nothing in Section 173(8) to
suggest that the court is obliged to hear the accused
before any such direction is made. Casting of any
such obligation on the court would only result in
encumbering the court with the burden of searching
for all the potential accused to be afforded with the
opportunity of being heard.‟
12. The accused can certainly avail himself of an
opportunity to cross-examine and/or otherwise
controvert the authenticity, admissibility or legal
significance of material evidence gathered in the
course of further investigations. Further in light of
the views expressed by the investigating officer in
his affidavit before the High Court, it is apparent
that the investigating authorities would inevitably
have conducted further investigation with the aid of
CFS under Section 173(8) of the Code.
13. We are of the view that what is the
evidentiary value can be tested during the trial. At
this juncture it would not be proper to interfere in
the matter."
NEUTRAL CITATION NO. 2024:MPHC-JBP:51406
26. This Court in the case of Prabal Dogra vs. Superintendent of
Police, Gwalior and State of M.P. by order dated 30.11.2017 passed in
M.Cr.C.No.10446/2017 has held that accused has no say in the matter
of investigation.
27. Therefore, it is clear that the petitioners who are accused in
certain offences have no right to seek either change of investigating
agency or have no right to seek direction to investigating agency to
investigate the matter in accordance with the wishes of the accused.
28. Furthermore, the Supreme Court in the case of Manohar Lal
Sharma Vs. Principal Secretary and others, reported in (2014) 2 SCC
532 has held as under:-
"38. The monitoring of investigations/inquiries by
the Court is intended to ensure that proper progress
takes place without directing or channelling the
mode or manner of investigation. The whole idea
is to retain public confidence in the impartial
inquiry/investigation into the alleged crime; that
inquiry/investigation into every accusation is made
on a reasonable basis irrespective of the position
and status of that person and the
inquiry/investigation is taken to the logical
conclusion in accordance with law. The
monitoring by the Court aims to lend credence to
the inquiry/investigation being conducted by CBI
as premier investigating agency and to eliminate
any impression of bias, lack of fairness and
objectivity therein.
39. However, the investigation/inquiry monitored
by the court does not mean that the court
supervises such investigation/inquiry. To supervise
would mean to observe and direct the execution of
a task whereas to monitor would only mean to
maintain surveillance. The concern and interest of
the court in such "Court-directed" or "Court-
NEUTRAL CITATION NO. 2024:MPHC-JBP:51406
monitored" cases is that there is no undue delay in
the investigation, and the investigation is
conducted in a free and fair manner with no
external interference. In such a process, the people
acquainted with facts and circumstances of the
case would also have a sense of security and they
would cooperate with the investigation given that
the superior courts are seized of the matter. We
find that in some cases, the expression "Court-
monitored" has been interchangeably used with
"Court-supervised investigation" Once the court
supervises an investigation, there is hardly
anything left in the trial. Under the Code, the
investigating officer is only to form an opinion and
it is for the court to ultimately try the case based
on the opinion formed by the investigating officer
and see whether any offence has been made out. If
a superior court supervises the investigation and
thus facilitates the formulation of such opinion in
the form of a report under Section 173(2) of the
Code, it will be difficult if not impossible for the
trial court to not be influenced or bound by such
opinion. Then trial becomes a farce. Therefore,
supervision of investigation by any court is a
contradiction in terms. The Code does not
envisage such a procedure, and it cannot either. In
the rare and compelling circumstances referred to
above, the superior courts may monitor an
investigation to ensure that the investigating
agency conducts the investigation in a free, fair
and time-bound manner without any external
interference."
29. Thus, it is clear that this Court in exercise of power under Article
226 of Constitution of India cannot supervise the investigation and any
direction to the Police to investigate the matter in a particular manner
would certainly come under the definition of supervision which is not
permissible under the law.
NEUTRAL CITATION NO. 2024:MPHC-JBP:51406
30. It is next contended by counsel for petitioners that the offence was
committed by the Company, however Police is not taking any action
against the owners of the said Company and is harassing the petitioners.
31. Whether the owners of the Company have been arrayed as an
accused or not is not an important issue because once this Court has
come to a conclusion that petitioners are also guilty of persuading the
innocent investors to invest their hard earned money in bogus and fake
Company, then they cannot run away from their criminal liability
specifically when they had received commission in lieu of investments
got done by the petitioners from the innocent investors.
32. Furthermore, an accused cannot be discharged or acquitted merely
on the ground that some more persons who had also committed offence
have not been arrayed as accused. Furthermore, if the charge-sheet is
filed by leaving certain other persons who have also committed offence,
then the Court has a jurisdiction to summon additional accused in
exercise of power under Section 319 of Cr.P.C. (358 of BNSS, 2023)/
190 of Cr.P.C (210 of BNSS, 2023).
33. Furthermore, investigation cannot be transferred to CBI just on
the saying of the petitioners. No exceptional circumstances have been
pointed out by the petitioners to transfer the investigation to CBI.
Furthermore, as already held, matter cannot be transferred to CBI on the
saying of the accused.
34. So far as the prayer for clubbing this petition along with W.P.
No.17126/2021 (PIL) is concerned, the same is misconceived.
35. According to the petitioners, said PIL has been filed by the
investor complaining against the Company/ accused and therefore,
NEUTRAL CITATION NO. 2024:MPHC-JBP:51406
subject matter of the said PIL is completely different from the subject
matter of the present petition.
36. Accordingly, no case is made out warranting interference.
37. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
