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1999 (9) TMI 997
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....Pal and others have sought issuance of a writ of certiorari for quashing the F.I.R. dated 27-9-1998 on the basis of which Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. was registered at Police Station Noida, Gautam Buddha Nagar, on several grounds stated in the petition apart from citing as precedence the order dated 3-11-1998 of a Division Bench of this Court in Mahesh Yadav's writ petition. 3. Mahesh Yadav, brother of petitioner Satya Pal filed Writ Petition No. 4658 of 1998 for quashing the very same F.I.R. before a Division Bench (of which one of us, S. Rafat Alam, J. was a member), which disposed of the writ petition on that very date, i.e. 3-11-1998 with the direction that the petitioners therein shall not be arrested in the aforesaid Case Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. until submission of the report under Sections 173, Cr.P.C. subject to their full co-operation in investigation. 4. When the instant writ petition came up for admission before a Division Bench (comprising one of us, Justice Palok Basu and Hon'ble Mr. Justice P. K. Jain), two points emerged, first, whether the informant was required to be giv....
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....ion of petitioner No. 1, Satya Pal Yadav and his brother Mahesh Yadav and they are living as tenants on the rent payable on month to month basis. However, because of some dispute on the question of payment of rent, the informant moved an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 (for short the Act), in the Court of the IIIrd Addl. District Judge, Ghaziabad, as Suit No. 1016 of 1996 for their eviction. It is alleged that since the parties entered\ into a compromise, brought to the notice of the Court by application No. 56-A, the suit was accordingly, disposed of on 5-3-1998 in terms of the alleged compromise. However, on 27-9-1998 the impugned F.I.R. was lodged alleging that one R. K. Chaddha, resident of B-343-A, Sector 19, Noida made an offer to purchase the house in question and after negotiation between them a sum of Rs. 16 lakhs was agreed as price of the house out of which Rs. 35,000/- was paid to the informant as advance and the rest amount was agreed to be paid at the time of registration of the sale deed. R. K. Chaddha then came to the informant and induced him to sign some blank stamp papers for making ap....
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.... that in certain cognizable offences the complainant has not been given right to withdraw the prosecution because the offence is against the State. In this connection learned counsel for the petitioner a judgment of the Hon'ble Supreme Court in the case of Lt. Col. Prithipal Singh Bedi v. Union of India and others, reported in and submitted that the Criminal Procedure Code does not give any right to the informant "to be heard" where the proceeding has been initiated after getting information under Section 154 or otherwise as provided under Section 157, Cr.P.C, if the same is challenged before this Court. In short, the submission is that since the informant has a statutory right to file complain, but if he chooses to give information to the Police under Section 154 of the Code instead of filing complaint, in that case he is not a necessary party in a criminal case in which the police may or may not investigate the case as after giving information to the police, the informant should be taken to have no subsisting interest in the matter. Learned counsel has also referred Sub-sections (d) and (r) of Section 2 of the Code and submitted that in view of the Explanation given in Sub-se....
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....able offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-section (1) may send the substance of such information in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to th....
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....f so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without Sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The Officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the offence was first given. 12. Sub-section (1) of Section 154 of the Code provides about the information to be given to the police station, which sets the investigation in motion. Sub-section (2) of Section 154 gives a right to the informant to receive a copy of such information free of cost. Sub-section (3) of Section 154 provides that in the event of refusal by an officer in-charge of a police station to record the information under Sub-section (1), the informant may send the substance of such information in writing by post to the concerned Superintendent of Police who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case or direct any subordinate police officer to make investigation ....
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....Code is that if the police refuses to investigate the offence in a mala fide or arbitrary manner, the informant may challenge such refusal or in action by invoking the provisions of the Code or the Constitution of India for seeking directions to the police to act in accordance with the law. 15. Section 173 provides that as soon as the investigation is complete, the officer in-charge of a police station shall forward the same to the Magistrate empowered to take cognizance of the offence on the police report in the form prescribed by the State Government giving particulars as to whether any offence appears to have been committed and if so, by whom. Sub-clause (ii) of Sub-section (2) of Section 173 casts a further duty upon the police officer to communicate the action taken by him to the informant in the manner prescribed by the State Government. Hence it confers a right on the informant to know the actions taken by the police on his F. I. R. 16. Therefore, on scrutiny of the aforesaid provisions of the Code, it is evident that after lodging the F. I. R. the informant's right to pursue investigation or to know the result of such investigation is not lost. He has right and lo....
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.... against the order of acquittal. Thus, the informant would be vitally affected if the F. I. R. is quashed and should be afforded an opportunity to defend it by rebutting his prayer for its quashing. 20. Reliance on the explanation to subsection (d) of Section 2 of the Code is misplaced. The explanation refers to the report of the police submitted the Magistrate in a non-cognizable offence, although the investigation proceeded on the presumption that the alleged offence is a cognizable one. Subsection (d) of Section 2 of the Code reads as under: 2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known of unknown, has committed an offence but does not include a police report; Explanation :- A report made by a Police Officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 21. The explanation provides that the report of a police officer in a case which after investigation, discloses the commiss....
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....(supra), the respondents having reported the offence to the police under Section 154 of the Code has not only the right to know its result or outcome of the investigation made on his information but has also a right to insist for effective and fair investigation. Therefore, having considered the submissions made by the parties through their respective counsel and also having examined the various provisions of the Code and the law as laid down by the Apex Court, it is hereby held that where an accused seeks quashing of the F. I. R. regarding cognizable offence by invoking writ jurisdiction, the informant should be made a party to be afforded an opportunity of hearing before passing the final order. The question No. 1 referred to this Bench is accordingly answered in the affirmative. 25. Now adverting to question No. 2, the provisions of the Rules of the Court contained in Chapter XXII on which reliance has been placed by the learned counsel for the petitioners, requires to be examined. This Chapter deals with the procedure for entertaining and disposed of Writ Petition under Article 226 of the Constitution (other than a writ in the nature of habeas corpus). Rule 1 thereof provide....
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....so enables the Court to dispose of the writ petition on merit at the very first hearing, provided the notice of motion has already been served upon the Government Advocate or the Standing Counsel, as the case may be, and there is no other party to be served. Therefore, in a writ petition where all the parties are represented through the Government Advocate or the Standing Counsel and there is no other party to be served, in that case the Court in its discretion can dispose of the writ petition on merits at the first hearing. It is an enabling provision to enable the Court to exercise its discretion for the disposal of cases on the first day of hearing if all the parties are represented through the Government Advocate or the Standing Counsel. 27. Rule 4 provides that an application shall be heard not less than eight clear days, after the service of notices under Rule 2 and the counter- affidavit is to be filed within three weeks unless otherwise provided, and the rejoinder within two weeks from the date of service of the counter- affidavit. 28. The practice prevalent in this Court is that the petition or an application is placed before the appropriate Bench, Single Judge or Di....
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.... until submission of the report under Section 173, Cr. P. C. subject to their full co-operation in investigation i.e. F. I. R. was not quashed and the final order was passed on the very day the petition was moved. 31. Sri Ravindra Rai, learned counsel appearing for the petitioners while addressing on question No. 3, submitted that the High Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution, may interfere and pass appropriate order in criminal matters to secure the ends of justice and to prevent the encroachment upon the personal liberty of a person by the Executive except in accordance with law. Thus, he contended that in an appropriate case this Court for the ends of justice can stay arrest of the accused even though the F. I. R. discloses commission of a cognizable offence, because in the State of U. P., remedy under Section 438 of the Code to seek anticipatory bail is not available. It is stated that the validity of Section of the U. P. Amendment Act, 1976 (U. P. Act No. 16 of 1976) though upheld by the Supreme Court in the case of Kartar Singh reported in is again under challenge before the Hon'ble Supreme Court in the case of Jagat Pra....
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....power under Article 226 of the Constitution or its inherent power under Section 482, Cr. P. C. with the investigation of a cognizable offence has been examined in a number of decisions of the Hon'ble Supreme Court, as well as of the different High Courts. It has been consistently held that where the allegations in the F. I. R. taken at the face value and accepted in entirety, do not constitute any cognizable offence; the F. I. R. and the investigation thereon may be quashed. 34. In the case of State of Haryana v. Chowdhry Bhajan Lal the Apex Court having examined its various pronouncements on the subject and the relevant provisions of the Code, laid down the guidelines by way of illustration wherein the extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Code could be exercised either to prevent abuse of the process of any Court of otherwise to secure the ends of justice. The guidelines by way of illustrations given by the Apex Court are extracted below (at page 629 of AIR) : 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in t....
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....t the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F. I. R. or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act accordingly to its whim or caprice. 36. The above view of the Supreme Court has again been reiterated in the case of M/ s. Pepsi Foods Ltd. v. Special Judicial Magistrate (supra); Rupan Deol Bajaj v. K. P. S. Gill (supra), Smt. Rashmi Kumar v. Mahesh Kumar Bhada 1997 SCC (Cri) 415; and Central Bureau of Investigation v. Duncan Agro Industries Ltd.. 37. Thus, where the allegations made in the F. I. R. and on a consideration of the relevant materials if the Court is satisfied that an offence is disclosed, the Court normally will not interfere with the investigation unless there is strong grounds or compelling reasons requiring interference in the interest of justice. However, upon consideration of relevant materials if the Court is satisfied and no offence is....
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....estigate the offence to detect the offender. Section 41 of the Code lays down the circumstances or conditions when the police may arrest without warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint or credible information has been received or a reasonable suspicion exists of his having been so concerned. There is no doubt that arrest is part of investigation, the police or the investigating agency has every authority to investigate a case where cognizable offence has been reported. But while exercising power of arrest they are required to be satisfied about the genuineness and bona fides of the allegations of the complaint and about the necessity of arrest of the person concerned. In other words, there must be reasonable justification for effecting such arrest, which is necessary for proper investigation. 41. A Full Bench of this Court consisting of 7 Judges (of which one of us Hon'ble Palok Basu, J. was also a Member), while, considering the question as to whether before submission of report by the police under . 173 of the Code the High Court can interfere with investigation in its inherent jurisdiction under Section 48....
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....nting any interim relief by way of stay of arrest during the pendency of the writ petition to prevent miscarriage of justice and to protect the life and liberty as guaranteed under Articles 21 and 22 of the Constitution. But the writ petition cannot be disposed of merely in terms of the interim order. It is a settled legal position that Article 226 of the Constitution cannot be used for the purposes of giving interim relief as the only and final relief. Reference may be made to a decision of the Constitution Bench of the Apex Court in the case of State of Orissa v. Madan Gopal Rungta, reported in wherein it has been held as follows (at page 14) : Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application. The directions had been given here only to circumvent the provisions of Section 80, Civil P. C, and that was not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the....