TaxTMI 
TaxTMI 
2023 (1) TMI 1532
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.... in the garb of a notice under Section 160 of the code of Criminal Procedure, is arresting persons during examination. Documents (G. R. 1357 of 2022 in connection with Contai P.S. Case No. 265 of 2022 dated 29.06.2022) relating to such an incident leading to such arrest made in respect of (accused) Alok Sahoo, have been filed by the petitioner. Apprehending such arrest the present application has been filed, praying for setting aside/quashing of the said notices. Mr. Saswata Gopal Mukherjee, Learned Public Prosecutor submits that it is in due course of investigation that a notice under Section 160 of the Cr. P.C. is issued by virtue of power conferred upon the Police Officer (Investigating Officer) and if orders as prayed for by the petitioner is passed, it shall hamper proper investigation and thus will be an abuse of the process of court and also against the interest of justice. It is further submitted that Section 160 Cr.P.C. empowers a Police Officer making an investigation under chapter XII of the code to requires the attendance of any person.......... A notice under Section 160 Cr. P.C. is issued to such persons where it appears that a person may be acquainted wit....
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....ection 160 Cr. P.C. as question apprehension of arrest is lacking at this stage." The said observation was totally against the findings of this court dated 08.09.2022. An explanation was called for. The only explanation of the Session Judge was that he had not seen the order dated 08.09.2022 of this Court. (Though the order was duly annexed to the petition under Section 438 Cr.P .C.) Finally an apology was tendered. Inspite of the said observation of the Session Judge contrary to the view of this Court, the petitioner no. 1 was arrested. While granting bail to the petitioner no. 1, a division bench of this court held :- "We have considered the materials on record. Petitioner is not the principal accused. Though F.I.R. was registered in June, 2022, till 28th October, 2022 it appears there was no incriminating material against him. This prompted the investigating agency to contend that during the hearing of the application for anticipatory bail he was summoned as a witness and not an accused. Immediately after withdrawal of the prayer of the prearrest bail, two statements were recorded under Section 161 of the Code of Criminal Procedure stating that the petitioner had sup....
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....as it is an integral part of investigation and if it is permitted, the total investigation shall fail as the said provision enables the collection of evidence in an investigation thus leading to a logical/lawful conclusion in a case. Learned prosecutor has then submitted that the notices in this case have now become infructuous as the notices are valid for a certain time period, which in this case has expired, the last notice being dated 07.08.2022. As such these notices whose validity has expired and are not in force as on date have no force in law and thus being infructuous, quashing of the same will not serve any purpose. It is further submitted by the Learned prosecutor that as the petitioner no. 1 has been granted bail and the petitioner no. 2 has a protective order from this court, the revision can be accordingly disposed of. Learned Counsel for the defacto complainant/opposite party no. 2 while supporting the Learned Public Prosecutor has submitted that a notice under Section 160 Cr.P.C. being an integral part of investigation and being issued in accordance with law cannot be quashed as it is not an abuse of process of either Court or law, the same being issued in t....
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....of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one-and a significant-end of the spectrum. The other end of the spectrum is equally important : the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure, 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognised the inherent power in Section 561-A. Post-Independence, the recognition by Parliament [ Section 482 CrPC, 1973] of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights ....
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....r procuring the attendance of the accused, who may be arrested at any time, if necessary. In other words, this section has reference to the persons to be examined as witnesses in the trial or inquiry to be held after the completion of the investigation. As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the section. But the police officers are fully authorised to require the personal attendance of the suspects during the investigation." The court categorically observed that Section 160 Cr. P.C. applies to the witnesses and possible witnesses only. The court further held that an order under this Section cannot be made requiring the attendance of an accused person with a view to his answering the charge against him. The Court also held :- "... The intention of the legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time if necessary" But the court also made it clear that the police officers are fully authorised to require the personal attendance of suspects during the investig....
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....petitioner no. 1. As discussed earlier, from the facts and circumstances before this court it is evident that the reason for arresting a person in this indirect manner, (when they can be arrested directly, in appropriate cases) is only to ensure that the person sought to be arrested shall not have the chance or opportunity to avail of the benefit of anticipatory bail/protective orders (available to accuseds/person apprehending arrests) to avoid detention in a case in which there May Not be any prima facie case of a cognizable offence in respect of that person who has been made an accused subsequently at the time of compliance of notice under Section 160 Cr. P.C. as a witness or a suspect and finally arrested as an accused. This is a situation when the court should not hesitate to exercise its inherent process to prevent abuse of process of law and also in the interest of justice. In Umesh Kumar Vs State of Andhra Pradesh and Anr. (Supra) the Supreme Court also held :- "20. The scope of Section 482 CrPC is well defined and inherent powers could be exercised by the High Court to give effect to an order under CrPC; to prevent abuse of the process of court; and to oth....
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....rial is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three : Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four : Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?" 22. In State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] this Court dealt with an issue of whether an application under Section 482 CrPC for quashing the charge-sheet should be entertained before cognizance is taken by a criminal court and held as under : (SCC pp. 269-70, para 68) "68. ... Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to 'killing a stillborn child'. Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the app....
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....and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal. 27. The scheme for inquiry/trial provided under CrPC is quite clear. After investigation, report under Section 173(2) CrPC is to be submitted before the competent court i.e. the Magistrate having jurisdiction in the matter and the Magistrate may take cognizance under Section 190 CrPC. However, it is still open to the Magistrate to direct further investigation under the provisions of Section 173(8) CrPC. If the case is triable by the Court of Session, the Magistrate would commit the case to the said court under Section 209 CrPC. It is for the court to examine whether there is sufficient material collected during investigation and filed along with the charge-sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges under Section 228 CrPC. At this stage the remedy available to the accused is to ask for discharge under Section 227 CrPC. In case charges....
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....plaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." 84. In State of Haryana and Others v. Bhajan Lal and Others 1992 Supp (1) SCC 335, the Supreme Court considered the scope of inherent powers of the Court and after referring ....
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....se where quashing can be done as here it is a notice under Section 160 Cr.P.C which has been sought to be quashed. To allow the same would hamper free investigation. The Supreme Court in M/s Neeharika Infrastructure Vs. The State of Maharashtra (on 13 April, 2021), in Criminal Appeal No. 330 of 2021, citing several precedents held :- "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; 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 noninterference 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 d....