Himachal Pradesh High Court
Rajinder Singh vs State Of H.P And Others on 13 July, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 660 of 2023 Reserved on: 28.06.2023 .
Decided on: 13th July, 2023
Rajinder Singh .......Petitioner.
Versus
State of H.P and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner: Mr. Karanjeet Singh Brar and Mr. Govind Korla, Advocates.
For the respondents: Mr. Mohinder Zaraick, Addl. A.G with Mr. Tejasvi Sharma, Addl.
A.G, Mr. H.S. Rawat, Addl. and Ms. Avni Kochhar, Dy. A.G. Virender Singh, Judge Petitioner Rajinder Singh has filed the present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.'), seeking the following relief:-
"It is, therefore, most respectfully prayed the present petition may kindly be allowed and directions may kindly be issued to respondent No.3, to strictly comply with the provisions as required under section 41-A Cr.P.C., (in compliance of directions issued by the Hon'ble Apex Court in case of "Arnesh Kumar Vs. State 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 13/07/2023 20:34:54 :::CIS 2
of Bihar" vide judgment dated 2.7.2014), in case there is proposal of arrest of the petitioner in case bearing FIR No.78 dated 14.6.2023 (Annexure P-1) under sections .
420, 120B IPC of 1860, registered at P.S. Manpura, Police District Baddi, District Solan, keeping in view the facts and circumstances of the present case, in the interest of justice."
2. As per factual position asserted in the petition, on the complaint of one Neelam Chandel, FIR No. 78 dated 14.06.2023 has been registered under Sections 420 and 120B of the Indian Penal Code (hereinafter referred to as the 'IPC') with Police Station, Manpura, Police District Baddi, District Solan, H.P. The petitioner has asserted the factual position, in the manner, in which, the FIR has been registered against him.
3. In addition to this, the petitioner has also put-forth his defence. According to him, the offence alleged in the FIR is the economic offence and police has registered the FIR without conducting the preliminary inquiry. The petitioner is stated to be having documentary proof to demonstrate his innocence. Reiterating the provisions of Section 41A Cr.P.C., as well as, the judgment of the Hon'ble Apex Court in Arnesh Kumar vs. State of Bihar and another, (2014) 8 SCC 273, the petitioner has asserted that he is having serious apprehensions ::: Downloaded on - 13/07/2023 20:34:54 :::CIS 3 that due to extraneous considerations, he may be arrested in this case, without verifying the factual position.
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4. Learned counsel appearing for the petitioner could not satisfy the judicial conscience of this Court as to how the present petition is maintainable. In the present petition, a prayer has been made to direct respondent No.3 to comply with the provisions of Section 41A Cr.P.C., as well as, directions issued by the Hon'ble Apex Court in Arnesh Kumar's case (supra).
5. Merely on the alleged apprehensions of the petitioner regarding the violation of the mandate of Hon'ble Apex Court, as well as, alleged non-compliance of the provisions of Section 41A Cr.P.C, does not clothe this Court with jurisdiction to issue directions. The directions of the Hon'ble Apex Court are the law of land and binding upon all, including the police, as well as, this Court.
6. By way of present petition, the petitioner is seeking a sort of guarantee from the respondents to issue notices under the provisions of Section 41A Cr.P.C. The present petition is neither the petition seeking pre-arrest bail nor the same qualifies the petition for quashing the FIR. A futile ::: Downloaded on - 13/07/2023 20:34:54 :::CIS 4 attempt has been made to devise a novel method to seek the assurance from the police, which amounts to interference in .
the investigation of the case. The accused has been named in a case registered under Section 420 IPC. The provisions of Section 420 IPC are reproduced as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
6. On the basis of alleged apprehensions of the petitioner, directions cannot be issued, as, it amounts to pre-
empting the entire matter. Complying with the mandate of law of land, is the solemn duty of each and every authority under the sun. The petitioner could not make out a case, seeking a direction, at this stage, under Section 482 Cr.P.C.
Nothing has been brought on record to show the apprehension of violation of Section 41A Cr.P.C. Mere pleadings are not sufficient to allege the violation.
Commenting upon the stand taken by the petitioner, in the ::: Downloaded on - 13/07/2023 20:34:54 :::CIS 5 petition, amounts to pre-empting the mode and manner of the investigation, which is the sole prerogative of the police.
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7. The Hon'ble Apex Court in Criminal Appeal No. 45 of 2020 titled as State Rep. by the Inspector of Police vs. Murugesan and another has elaborately discussed the provisions of Section 482 Cr.P.C. The relevant para 7 of the judgment is reproduced as under:-
"7. This Court in Davinder Pal Singh Bhullar referred to a case reported as Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee & Anr. wherein the Court observed that inherent powers under Section 482 of the Code cannot be exercised to do something which is expressly barred under the Code. It was held that inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The Code does not confer unlimited/unfettered jurisdiction on the High Court as the "ends of justice" and "abuse of the process of the court" have to be dealt with in accordance with law and not otherwise. The High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. It was also held that the High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution of India at the behest of an aggrieved person, if the court is convinced that the power of 3 (1990) 2 SCC 437 investigation has been exercised by an investigating officer mala fide or the matter is not investigated at all, but even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of due process as provided in the Code.
The Court held as under:
::: Downloaded on - 13/07/2023 20:34:54 :::CIS 6"51. The inherent power of the court under Section 482 CrPC is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding .
pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under CrPC. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide Kurukshetra University v. State of Haryana [(1977) 4 SCC 451 : 1977 SCC (Cri) 613 : AIR 1977 SC 2229] and State of W.B. v. Sujit Kumar Rana [(2004) 4 SCC 129 : 2004 SCC (Cri) 984] .)
52. The power under Section 482 CrPC cannot be resorted to if there is a specific provision in CrPC for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of CrPC. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the "ends of justice" and "abuse of the process of the court"
have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in the course of administration of justice as provided in the legal maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest. However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. (Vide Lalit Mohan Mondal v. Benoyendra Nath Chatterjee [(1982) 3 SCC 219 : 1982 SCC (Cri) 697] , Rameshchandra Nandlal Parikh v. State of Gujarat [(2006) 1 SCC 732 : (2006) 1 SCC (Cri) 481] , CBI v. Ravi Shankar Srivastava [(2006) 7 SCC 188 : (2006) 3 SCC (Cri) 233], Inder Mohan Goswami v. State of ::: Downloaded on - 13/07/2023 20:34:54 :::CIS 7 Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] and Pankaj Kumar v. State of Maharashtra [(2008) 16 SCC 117 : (2010) 4 SCC (Cri) 217] .) .
53. The High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an investigating officer mala fide or the matter is not investigated at all. Even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of process as provided for in CrPC. Another remedy available to such an aggrieved person may be to file a complaint under Section 200 CrPC and the court concerned will proceed as provided in Chapter XV CrPC. (See Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768 : 2005 SCC (Cri) 404] and Divine Retreat Centre v. State of Kerala [(2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9] .) xx xx xx
64. An inherent power is not an omnibus for opening a Pandora's box, that too for issues that are foreign to the main context. The invoking of the power has to be for a purpose that is connected to a proceeding and not for sprouting an altogether new issue. A power cannot exceed its own authority beyond its own creation. It is not that a person is remediless. On the contrary, the constitutional remedy of writs is available. Here, the High Court enjoys wide powers of prerogative writs as compared to that under Section 482 CrPC. To secure the corpus of an individual, remedy by way of habeas corpus is available. For that the High Court should not resort to inherent powers under Section 482 CrPC as the legislature has conferred separate powers for the same. Needless to mention that Section 97 CrPC empowers the Magistrates to order the search of a person wrongfully confined. It is something different that the same court exercising authority can, in relation to the same subject- matter, invoke its writ jurisdiction as well. Nevertheless, the inherent powers are not to provide universal remedies. The power cannot be and should not be used to belittle its own existence. One cannot concede anarchy to an inherent power for that was never the wisdom of the legislature. To confer unbridled inherent power would itself be trenching upon the authority of the legislature."
::: Downloaded on - 13/07/2023 20:34:54 :::CIS 88. Considering all these facts, the present petition is not maintainable and the same is rejected accordingly.
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9. Pending applications, if any, also stand disposed of.
July 13, 2023 ( Virender Singh )
(naveen) Judge
r to
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