Madhya Pradesh High Court
Smt. Preeti Garg vs The State Of Madhya Pradesh on 14 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14th OF FEBRUARY, 2025
WRIT PETITION No. 5413 of 2025
SMT. PREETI GARG
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajmani Bansal - Advocate for petitioner.
Shri Ravindra Dixit - Government Advocate for the State.
ORDER
This petition under Article 226 of the Constititution of India has been
filed seeking following relief (s):-
"1. A direction may kindly be given to the respondents to done fair
and imprtial enquiry in the matter; 2. Further direction may kindly
be issued to the respondents to make an arrest on an accused of
Crime No.683/2024; 3. Further directioin may kindly be issud to the
respondent No.3 Superindent of Police Gwalior to change the
investigation officer and also be directed not to intefere in the
investigation with regard to Crime No.683/2024; 4. Further direction
may kindly be given to the State to direct for conducting the CID
enquiry in the matter. 5. Any other relief which this Hon'ble deem
fit in the facts and circumstances of the case may kindly be granted
to the petitoner."
2. It is submitted by cousnel for petitioner that on the basis of forged
agreement to sale, accused persons were pressurizing her to execute the sale
deed and accordingly, she made a complaint to the police. By referring to
F.I.R., it is submitted by counsel for petitioner that in the beginning of F.I.R.
itself, it is mentioned that "after considering the allegations made in the
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complaint, the Q.D. report as well as the documents annexed alongwith the
complaint", police found that it is a fit case for registration of F.I.R. It is
submitted that now not only the police is not arresting the accused persons
but the Investigating Officer under the directions of the Inspector General of
Police, Gwalior is trying to obtain a second report of handwriting expert
which clearly shows that the Gwalior Police is hand in gloves with the
accused persons. Therefore, it is prayed that either the Police Investigating
Officer should be directed to conduct a free and fair investigation or the
investigation should be handed over to some independent agency.
3. Per contra, the petition is vehemently opposed by counsel for the
State. It is submitted by Shri Ravindra Dixit that in exercise of power under
Section 30 of BNSS, the superior authority can always issue directions to the
Investigating Officer. Free and fair investigation does not mean that the final
report in favour of the complainant should be prepared. Although there is
nothing on record to suggest that any direction has been given by the
Inspector General of Police to obtain a second report from handwriting
expert but even if it is so, it would not mean that the police is hand in glove
with the accused persons. Furthermore, petitioner has not impleaded the
accused persons, against whom she has lodged the F.I.R.
4. Heard learned counsel for parties.
5. The first question for consideration is as to whether the impression
developed in the mind of petitoner with regard to unfair investigation is
based on some sound foundation or not ?
6. The petitioner has not impleaded the persons against whom she has
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alleged. The primary concern of petitioner is that the persons against whom
she has alleged should be arrested. Accordingly, counsel for petitioner was
directed to address this Court as to whether the police is under the obligation
to arrest the accused persons in each and every congnizable offence or not,
or it is the prerogative of police not to arrest the accused persons at the initial
stage. It was fairly conceded by counsel for petitoiner that it is not obligatory
on part of the police to arrest the accused persons and for the reasons, I.O.
may refuse to arrest the accused persons .
7. Be that whatever it may be.
8. The Supreme Court in the case of D. Venkatasubramaniam and
others Vs. M.K. Mohan Krishnamachari and another, reported in (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 charge sheet. 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 Natinoalized 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."
25. It is the statutory obligation and duty of the police to investigate
into the crime and the Courts normally ought not to interfere and
guide the investigating agency as to in what manner the investigation
has to proceed. In M.C. Abraham & Anr. V. State of Maharashtra &
Ors.5, 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
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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."
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 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 Divine Retreat Centre
V. State of Kerala & Ors.6 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
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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 order results in drastic
consequences of affecting one's own reputation."
(emphasis is ours)
34. The High Court in the present case, without realizing the
consequences, issued directions in a casual and mechanical manner
without hearing the appellants. The impugned order is a nullity and
liable to be set aside only on that score.
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.
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."
Therefore, any petition for arrest of accused persons and to file a
charge sheet is not maintainable. Under the provisions of BNSS, the police
has jurisdiction to file closure report pointing out that no offence is made out.
The said closure report is not final and it is subject to judicial scrunity. The
Supreme Court in the case of Abhinandan Jha and others vs. Dinesh Mishra ,
reported in AIR 1968 SC 117 , has held as under :-
"15. Then the question is, what is the position, when the Magistrate
is dealing with a report submitted by the police, under Section 173,
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that no case is made out for sending up an accused for trial, which
report, as we have already indicated, is called, in the area in
question, as a 'final report'? Even in those cases, if the Magistrate
agrees with the said report, he may accept the final report and close
the proceedings. But there may be instances when the Magistrate
may take the view, on a consideration of the final report, that the
opinion formed by the police is not based on a full and complete
investigation, in which case, in our opinion, the Magistrate will have
ample jurisdiction to give directions to the police, under Section 156
(3), to make a further investigation. That is, if the Magistrate feels,
after considering the final report, that the investigation is
unsatisfactory, or incomplete, or that there is scope for further
investigation, it will be open to the Magistrate to decline to accept
the final report and direct the police to make further investigation,
under Section 156 (3). The police, after such further investigation,
may submit a charge-sheet, or, again submit a final report,
depending upon the further investigation made by them. If,
ultimately, the Magistrate forms the opinion that the facts, set out in
the final report, constitute an offence, he can take cognizance of the
offence, under Section 190 (1) (b), notwithstanding the contrary
opinion of the police, expressed in the final report."
The Magistrate after receiving the closure report shall give an
opportunity of hearing to the complainant and thereafter, shall decide as to
whether closure report is to be accepted or the cognizance is to be taken or
further investigation is to be directed. Free and fair investigation does not
mean that investigation should be done from the angle of the comlainant.
9. Furthermore, 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.
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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
"Courtmonitored" 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 "Courtmonitored" 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."
Therefore, supervision of the investigation by Court is not permissible
and the investigation should be transferred only in exceptional cases and not
in a routine manner.
10. So far as transfer of investigation is concerned, it cannot be done
on the basis of unfounded impression of the complainant. Under these
circumstances, this court is of considered opinion that although the petitioner
has levelled several allegations against Investigating Officers but they are not
necessary to be considered at this stage and ultimately if police files closure
report, then petitioner shall have an opportuntiy to oppose the said closure
report and to put forward its case. Accordingy, no case is made out
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warranting interference.
11. This petiton fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AK/-
