Patna High Court
Subhash Agrawal And Anr. vs State Of Bihar on 9 February, 1989
Equivalent citations: 1989CRILJ1752
ORDER S. Haider Shaukat Abidi, J.
1. Petitioners have come to this Court under Section 482 of the Cr. P.C. (for short Cr. P.C.) for quashing the proceedings of G.R. case No. 1052 of 1982 pending the Court of the learned Chief Judicial Magistrate, Saharsa including the investigation and the first information of Saur Bazar P.S. Case No. 111 of 1982 (State v. Subhash Agarwal) under Section 407 of the Indian Penal Code (for short I.P.C.). The petitioners claim themselves to be proprietor of the Carriers Corporation of India, a firm which deals in carrying of goods through t rucks etc. from one part to the other part of the country and do business as public carrier. The Carrier Corporation of India (for short the Company) has a number of trailers to carrying big consignments from Bombay to any destination in India On 3rd of Aug., 1982, M/s. Bihar Paper Mills Limited (for short 'B.P.M.L.) a subsidiary to Bihar State Development Corporation Limited having their factory at Baijnathpur in the district of Saharsa entered into a contract with the said Company under the indenture of agreement of the above date to carry the cosignment of B.P.M.L. after taking delivery from the docks on the arrival of the goods of the B.P.M.L. from foreign countries. This contract was entered into after the tender of the said company was accepted and in the tender it was specifically mentioned that the consignments are packed in containers and boxes.
2. After the said agreement, on 26th Sept., 1982 one Ramdas Pragji and Sons of Bombay, the clearing Agents of the said B.P.M.L. informed the said Company that the consignments had arrived and the company should arrange to clear the same by midnight. As per the agreement, at least one day's notice was necessary to be given to the company. But in view of the fact that it was a short notice, it was brought to the notice of the B.P.M.L. that it was not possible to clear of the goods at such a short notice but in order to keep good relations the said Company arranged to send lorries as a special case and so a part of the cosignment was cleared. On taking delivery of the said goods, it was noticed that the containers were open and therefore, it was brought to the notice of the B.P.M.L that such open containers would mean that for transportation and unloading of such containers certain special and extraordinary care would have to be taken for which the rates would be higher. It was brought to the notice of the B.P.M.L. that it was suppression of the material fact while awarding tender and therefore, the B.P.M.L was informed that the said Company was constrained to give notice of the inability to do the job as per the rate agreed to do. It was also brought to the notice that the Bihar Sales Tax Road Permit is also necessary which was to be furnished by the B.P.M.L. In view of the above mentioned difficulties the consignments were taken to the godown and by letter dt. 26th Sept., 1982 (annexure-1) the B.P.M.L was informed about the aforementioned facts. On the same date, the B.P.M.L. sent a telegram to the petitioner in respect of transportation of the consignments from Bombay to Baijnathpur. The Project Officer A. K. Srivastava of B.P.M.L by his letter dt. 25th Sept., 1982 (annexure-2) had instructed the other employees of the said Company to send Sales Tax Form for Road permit so they could be delivered to the petitioner for taking the consignments to Saharsa, but the Road Permits were never handed over to the petitioner. The B.P.M.L. on getting the said letter of 26th Sept., 1982 give a reply by letter dt. 28th Sept., 1982 (annexure-3) to the petitioner liquidating the claim of the petitioner. The petitioner by letter dt. 3rd Oct., 1982 (annexure-4) brought to the notice of the B.P.M.L. that the consignments had been kept in Ware House which would be released only after the payment of the dues and further that the consignment were not packed from all sides and that the company would be responsible for any damages and really there was no breach of contracts.
The B.P.M.L. sent a further reply on 7th of Oct., 1982 (annexure-5) to the effect that as per Clause II of the agreement dt. 3rd Aug., 1982, the company had failed to comply with the agreement and the entire earnest and security money deposited with the B.P.M.L stood forfeited The petitioner was asked to hand over the consignments, which according to the B.P.M.L., were taken in possession illegally. In reply to the said letter the petitioner sent a letter dated 4th November, 1982 (calling upon the B.P.L.M. to remit the earnest and security money deposited by the Company and also the dues which were increasing day by day. The B.P.M.L. by letter dt. 12th Nov., 1982 informed the petitioner and reiterated its stand that the earnest money deposited with the B.P.M.L was forfeited in consequence of breach of the agreement and, therefore, there would be no question of refund much less any damages to be paid to the said company. Thus the petitioners came to know for the first time that the B.P.M.L. would be taking appropriate criminal action against them. Further there was exchange of letters and correspondence between the company and the B.P.M.L and later on the police seized the consignment on the basis of the first information report (annexure-5) drawn on the basis of the written complaint by A. K. Shrivastava, Project Officer of the B.P.M.L, registered as Saur Bazar P.S. case No. 111/82 (State v. Subhash Agrawal) and thereafter the case was registered as G.R. No. 1052 of 1982 in the Court of the Chief Judicial Magistrate, Saharsa and the order sheet has been annexed as annexure-7. The petitioners have prayed for quashing of the said first information report as well as the proceedings.
3. The first information report (annexure-6) by the B.P.M.L. through A. K. Shrivastava, Project Officer, shows that in pursuance of the agreement between the Company and t he B. P. M. L. t he company got the machinery parts in Bombay docks on 25-9-1982 after custom clearance and instead of transporting the same directly to the plant site at Baijnathpur, Saharsa, the Carriers Corporation of India took the materials to some Warehose in Bombay and sent a written information on 26-9-1982 to the Company repudiating their allgation under the contract for transport of the materials to Saharsa on frivolous and idle pretext and also refused to disclose the whereabouts of the materials collected by them, for which a report has been lodged under cover or letter No. 2145 dt. 6-10-1982 by the Secretary, B.S.I.D.C. Limited Patna. Further as the company refused to lift the remaining materials from the docks the B.P.M.L was compelled to issue fresh tender and appointed a new contractor M/s. India Carrier Pvt. Ltd. Hajiganj, Patna City, vide letter No. B.P.M.L./A-880 dt. 5-11-1982 to transport the materials lying in the dockyard as well as those taken in their custody by the Company on 25-9-1982 to Saharsa. In spite of the directions and demands addressed to the Company to deliver the packages retained by them since 25-9-1982, the company refused to hand over the materials and have thus misappropriated the goods in violation of the provisions of law and their obligation under the agreement to discharge the trust and have thereby committed an offence punishable under Section 407 of the I.P.C. 11 was requested to take action against the petitioners who have been acting in the name and on behalf of the firm and are to be found at the office of the firm Steel Chambers, Broach Street, Bombay; that the B.P.M.L. is a Government undertaking and the property in question is the Government property. It was, therefore, further requested to obtain a search warrant for locating materials secreted by the Carrier Corporation of India at Bombay and that the machineries are the part of the consignment approximately valued at rupees sixty five lacks.
4. The order sheet of the Court (annexure-6) of the Chief Judicial Magistrate, Saharsa, of Saur Bazar P. S. Case No. 111/82 is as follows:
Received F.I.R. of Saur Bazar P.S. 111/82 under Section 407, I.P.C. Seen. Register it in G.R. put up on 18-2-83 for F.F. Dictated Sd. illegible.
The officer-in-charge applied for the search warrant on 4-1-1983 before the learned Chief Judicial Magistrate, Saharsa, who issued the same to the police. On the basis of the search warrant the investigating officer and the police party reached Bombay and applied before the learned Metropolitan Magistrate, Bombay for the seizure of the goods and the learned Metropolitan Magistrate granted permission to the Bihar Police to execute the search warrant. Against the order of the learned Metropolitan Magistrate the company moved the Bombay High Court on the ground that the order has been passed by the Metropolitan Magistrate without hearing them. The High Court ordered the learned Metropolitan Magistrate to hear them and pass necessary orders. After remand the learned Metropolitan Magistrate heard the Company and permitted the Bihar Police to remove the goods pursuant to the search warrant issued by the learned Chief Judicial Magistrate, Saharsa. Again a petition was moved before the Bombay High Court on behalf of the Company, the Company obtained ex parte order but later after hearing the parties Mr. Justice V.S. Kotwal by order dt. 8-2-1983 dismissed the application filed by the Company. Thereafter the investigating officer took into custody the goods which are machines tools, equipment etc. in possession of the company on the basis of the search warrant.
5. The informant-B.P.M.L. applied for the release of the goods before the learned Chief Judicial Magistrate, Saharsa, on the ground that in absence of the goods the officers and labourers have become idle and it is suffering huge loss daily. However, the said application of the B.P.M.L. was not allowed by the learned Chief Judicial Magistrate as the company had produced the order of this Court staying the proceeding on 16-3-1983, the petitioners moved this Court on 9-3-1983 under Section 482, Cr. P.C. in the instant case for quashing the proceeding and on 10-3-1983 order of issuing notice and staying the further proceeding in G.R. Case 1052/82 was ordered. The B.P.M.L moved an application in this Court for release of the goods and this Court by order dt. 5-5-1983 passed a detailed order for the release of the goods to the informant which had been seized by the police in pursuance of the search warrant.
6. In the instant case no counter-affidavit has been filed by the opposite parties. When the case was taken up for final hearing on 7-11-1988, during the course of argument there was some reference about the proceedings in the Bombay High Court. Learned Counsel for the petitioners, therefore, filed two supplementary affidavits attaching therewith a copy of t he agreement dt. 3-8-1982 (already referred to above) between the company and the B.P.M.L. and also a copy of the award dt. 8th June, 1985 made by Mr. Justice Chandrika Prasad Sinha(Retired) as the sole arbitrator appointed in terms of the order dt. 23-1-1984, which according to the learned Counsel for the petitioners, is under challenge under Section 33 of the Arbitration Act, 1940 in the Bombay High Court. From the first supplementary affidavit, which has been sworn by Rajib Baid son of Jai Singh Baid on behalf of the petitioners it appears that the Bombay High Court had passed order in Suit No. 278/83 while disposing of notice of Motion No. 219 of 1983, as follows:
Mr. Thakkar does not desire to press the motion as the parties have referred the dispute to arbitration and Mr. Dixit's assurance to recommend that the prosecution launched against the plaintiff and his father will not be proceeded with Mr. Thakkar applied for withdrawal of the motion.
Motion allowed to be withdrawn. Plaintiff to pay costs.
7. The learned Arbitrator in the award dated 8th June, 1983, referred to above, has said at page 11 of the Award:
In any view of the matter, they failed to fulfil the terms of agreement and hence the claim of refund of Security Deposit of Rs. 35,000.00 is untenable as there was categorical failure in discharge of fulfilment of the terms of Agreement on their part. The claim of damage of Rs. 67,000.00 by way of loss of profit fails as they failed to perform their part leading to heavy loss to the Bihar Paper Mills Ltd. The Carriers Corporation of India are not entitled to either of Rs. 10,000.00 as carriage charge or Rs. 10,000.00 being the unloading charge and Rs. 1,05,000.00 being the storage charges as they did not fulfil the terms of Agreement by even carrying 118 Mt. of the consignment from the Bombay Docks/Port to the destination, rather they wanted to blackmail and earn higher amount by storing part of the consignment in their godown resulting in Criminal and Civil litigations and thus their intention appears to be not bona fide even in unloading and lifting 118 M.T. of the consignment. That in view of the findings above, Carriers Corporation of India, the claimant described as petitioner in Misc. Petition No, 247 of 1963, is not entitled to any of the claims, much less any interest over the said amount. Hence all the claims stand rejected and not allowed.... Admittedly, there was an agreement as referred to above between the parties and the clauses as to the damages are noted in paras 4 to 9 of the Agreement. After having gone through the annexures, correspondence and paper filed, there is no doubt left that Carriers Corporation took charge of only 118 MT of consignment from the Clearing Agent and instead of carrying it to the destination at Baijnathpur, Dist. Saharsa carried it to a place of their choice and stored there and then entered into correspondence and bargain resulting in a large number of litigations in Criminal Courts as well as before their Lordships in the Bombay High Court and even Patna High Court between the parties and the above said part of consignment was made available to the Bihar Paper Mills Ltd after one year. Similarly after going through the papers before me, there is no doubt, that the Carriers Corporation of India failed to perform its part as per terms of Agreement. Now the question arises as to what amount of compensation or damages are payable to the Bihar Paper Mills Ltd. and recoverable from the Carrier Corporation of India under Terms of Agreement. I would like to deal with itemwise. The claims have been put forth in para (41) of the Statement of Fact and Statement of Claims on behlaf of Bihar Paper Mills Ltd filed before me on 18-6-84 with annexures.
After giving out the details about claim the total claim of rupees five lakhs and odd had been awarded to the B.P.L.M. against the company by the learned Arbitrator. Against this Award the petitioners have moved before the Bombay High Court in Ordinary Original Civil Jurisdiction Petition No. Nil of 1985 in Arbitration Petition No. 247 of 1983 and the same is still pending adjudication as appears from the supplementary affidavit sworn by Jaibeer Kaushik son of Sri Kishandutta Kaushik on behalf of the petitioners.
8. Learned Counsel for the petitioners has urged that the dispute is a civil litigation between the parties and so criminal prosecution will not proceed. He also referred to the observations of the Bombay High Court as quoted above that Mr. Dixit appearing on behalf of the other side has said that B.P.M.L. will not proceed with the prosecution. H was next contended that looking to the first information report itself no case is made out and so under Section 482, Cr. P.C. this Court can quash the first information report at the initial stage.
9. Learned Counsel for the other side urged that in the complaint a prima facie case was there and it is more clear in view of the findings given by the learned Arbitrator, in accordance with the terms of the agreement. It was further argued that this application for quashing of the investigation under Section 482, Cr. P.C. had been filed with ulterior motive so that the evidence against t he accused may disappear. They want to set at naught the provisions of law bringing the accused under the clutches of Section 406, I.P.C Further it is not a civil litigation as the goods were entrusted to the accused which they had not returned and so there was criminal breach of trust for which this criminal prosecution is maintainable : Further according to him the application under Section 482, Cr. P.C. does not lie in the facts and circumstances of the case.
10. It is apparent that there was an agreement dt. 3-8-1982 and in view of that Agreement the parties resorted to the award proceedings, which resulted in negativing the claim of the accused persons which is borne out from the findings quoted above. From the findings of the Award it appears that there was an entrustment of the properties with the petitioners. The petitioners not only caused damages and loss to the B.P.M.L. but also instead of carrying it to the destination at Baijnathpur, Saharsa, district, carried it to the place of their choice and stored it there and then entered into correspondences and bargain resulting in a large number of litigations in Courts at Bihar as well as at Bombay. The consingments were, however, recovered only when the police executed search warrant and then the same could come in the possession of B.P.M.L. after the order dt. 5-5-1983 passed by this Court. The petitioners had themselves admitted the taking of the property and not delivering the same, though the same came to the B.P.M.L. later on. This shows that there is evidence of entrustment with the petitioners. In the case of Debabrata Gupta v. S. K. Ghosh the Supreme Court observed as follows at page 523 (para 11):
This Court in Patel's case 1965 (2) Cri LJ 431 (SC) (supra) approving the decision of the Calcutta High Court in Bhuban Mohan Rana Surendra Mohan Dass 1951-52 Cri Lj 723 (FB) and said that "before criminal breach of trust is established it must be shown that the person charged has been entrusted with property or with dominion over the property. In other words, the offence of criminal breach of trust under Section 406 of the Indian Penal Code is not in respect of property belonging to the partnership but is an offence committed by the person in respect of property which has been specially entrusted to such a person and which he holds in a fidiciary capacity.
In the case of Pratibha Rani v. Suraj Kumar , there was an allegation of misappropriation of the Stridhan entrusted to the husband and so the complaint under Section 406, I.P.C. The Supreme Court observed at page 632 (of AIR) : at p. 821 of Cri. L.J., para 11:
To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offence under Section 405, I.P.C. were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complainant should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction under Section 482, Cr. P.C. is totally unwarranted by law.
Thus apparently in this case there are allegations in the first information report about entrustment. This fact has been supported by this petition wherein the petitioners themselves admit that the articles in dispute were entrusted to the accused. This fact has further been strengthened by the award given by the learned Arbitrator and subsequent recovery of the goods on the basis of search warrant.
11. As regards the contention that it is a civil dispute and so the criminal prosecution in respect of the same does not lie, it is clear that in accordance with the terms of the agreement the matter had been referred to the arbitration and the learned arbitrator, as seen above, has given out findings against the Company which has preferred an appeal before the Bombay High Court which is still pending. But the pendency of the civil suit or arbitration is no bar to a criminal proceeding if an offence is made out under the provisions of I.P.C. Both civil and criminal proceedings can continue as they are independent of each other 'though at times there may be overlapping, but there is no bar to a criminal prosecution in spite of civil remedy being available. If it is held that simply because a civil suit is pending, the criminal prosecution may be stopped or stayed as the findings of Civil Court have bearing on the criminal prosecution, then an accused, in criminal cases may file suits with frivolous and vexatious pleas and get the criminal case either stayed or thwarted defeating the purpose of criminal prosecution. Such suits with oblique motives and ulterior designs are nothing but defeating the provisions of law and ends of justice. In cases where possession is being decided by Civil Court, the criminal courts may lay off hands, as it will be multiplicity of proceedings and further Civil Court decrees are binding on Criminal Court. It is not open to accused to take plea of Civil Suit when offence is committed and it is triable separately irrespective of title or rights to be determined otherwise as it did not involve multiplicity of proceedings.
In the case of Trilok Singh v. Satya Deo Tripathi where offences complained of were under Sections 395, 468, 465, 471, 412 and 120-B, I.P.C. the Supreme Court at page 851 (of AIR) : at Pp. 824-25 of Cri LJ (para 5) observed:
We are clearly of the view that it was not a case where any processes ought to have been directedto be issued against any of the accused. On the well-settled principles of law it was a very suitable case where the criminal proceeding ought to have been quashed by the. High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. Even assuming that the agreement entered on 29th March, 1973 was duly filled up and the signature of the complainant was obtained on a blank form, it is to be noticed that the amount of the two monthly instalments admittedly paid by him was to the tune of Rs. 3,566 exactly @ Rs. 1,783 per month. The complaint does not stay as to when these two monthly instalments were paid. In the First Information Report which he had lodged he had not stated that the third monthly instalment was payable on July 31, 1973. Rather, from the statement in the First Information Report it appears that the instalment had already become due on 28-7-73, when the complainant went out of Kanpur according to his case. The question as to what were the terms of the settlement and whether they were duly incorporated in the printed agreement or not were all questions which could be properly and adequately decided in a civil court. Obtaining signature of a person on blank sheet of paper by itself is not an offence of forgery or the like. It becomes an offence when the paper is fabricated into a document of the kind which attracts the relevant provisions of the Penal Code making it an offence of when such a document is used as a genuine document. Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck. On the face of the complaint petition itself the highly exaggerated version given by the respondent that the appellants went to his house with a mob armed with deadly weapons and committed the offence of dacoity in taking away the truck was so very unnatural and untrustworthy that it could not take the matter out of the realm of civil dispute. Nobody on the side of the respondent was hurt. Even a scratch was not given to anybody.
In the case of Ram Sumer Puri Mahant v. State of U.P. the Supreme Court observed at page 472 (of AIR) : (at p. 753 of Cri LJ) (para 2):
There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
In the case of Seenichamy v. Rama-krishnammal 1979 Cri LJ NOC 69 (Mad) it has been said:
In the criminal proceeding the rights of parties are not decided. The Criminal Court deals with the question as to whether an offence has been committed. It is in the civil suit only that the rights of parties are determined. The Criminal Court and Civil Court work each within its own allotted spheres. Though in Criminal Court, decisions of the Civil Court with regard to rights of parties are respected, yet a criminal proceeding cannot be stayed to await the decision of a Civil Court on the rights of parties, even if those rights have some connection with the facts constituting the criminal proceeding. If a contention that in such circumstances as these the criminal proceedings should be stayed till the disposal of the civil suit is accepted, then a number of criminal proceedings could be successfully stayed by the accused going on filing civil suits on the plea that a determination of certain rights in the civil suit will have a bearing on the facts alleged in the criminal proceedings. The criminal proceedings cannot therefore be stayed.
In the case of Misri Lal v. Tola Ram 1984 Cr LJ 1338 a learned Judge of Delhi High Court at page 1344 has observed in para 11:
Ordinarily, civil and criminal proceedings are independent of each other and even if the subject-matter overlaps, they may be continued simultaneously. It is also well-settled that ordinarily if one of the two proceedings must be stayed, it is the civil proceedings that are stayed This is based on the distinction between the two proceedings. Criminal proceedings are based on public policy while the civil proceedings are intended to determine rights between the parties.
In the case of Sawal Ram Lodha v Chhagan Lal, 1984 Cri LJ NOC 156 a learned single Judge of Allahabad High Court has said that since a person would not be absolved of criminal liability if ingredients of an offence were made out, prosecution commenced was not liable to be quashed merely because the matter concerned might also involve a civil liability. But here the position is different. When an F.I.R. was lodged there was no arbitration proceedings pending. It was after the start of prosecution, that the arbitration proceedings started and that too terminated against the petitioners. Though appeal against the award of the arbitrator is pending in the High Court, but that is in regard to damages and not entrustment, which is a distinct offence. So these criminal proceedings are not barred. Thus the plea that because it also involves civil consequences and so the criminal proceeding should not be continued, cannot stand.
12. The contention of the learned Counsel for the petitioners was that the investigation can be quashed even at t he initial stage whereas the learned Counsel for the other side urged that it cannot be done when prima facie a cognizable offence is made out. For this contention we will have to see the law laid down by the Courts from time to time. The present Section 482 of 1973 Code was formerly Section 561A of 1898, which was introduced by the Criminal Procedure Amendment Act 1923 after the decision in C, Dunn v. Emperor AIR 1922 All 107 : 1922-23 Cri LJ 349, wherein it was held that the High Court had no power to expunge remarks made by a Magistrate in a judgment against a person who was neither a party nor a witness to the proceedings. The Privy Council in the celebrated decision in the case of Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18 : 1945-46 Cri LJ 413, which has been constantly followed till now by the Courts in India, has observed at page 22 (of AIR) : at p. 417 of Cri LJ:
It has sometimes been thought that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act.
As to the question as to whether the Court has power to interfere with investigation in the exercise of its inherent power, the Privy Council observed in Khawaja Nazir case (supra) at page 22 (of AIR) : at p. 417 of Cri LJ:
In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police just as it is essential that every accused of a crime should have free access to a court of India so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with police matters which are within their province and into which the law imposes upon them the duty of inquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C, to give directions in the nature of habeas corpus. In such a case, as the present, however, the Court's functions begin when a charge is preferred before it and not until then.... No doubt, if no cognizable offence is disclosed and still more if no offence of any kind is disclosed, the police would have no authority to undertake any investigation and for this reason Newsam J. may well have decided rightly in AIR 1938 Mad 129 : 1938-39 Cri LJ 261. But that is not this case. In the present case the police have under Sections 154 and 156, Criminal P.C., a statutory right to investigate a cognizable offence without requiring the sanction of the Court, and to that extent the case resembles (1917) ILR 44 Cal 535 : AIR 1916 PC 64 in which as the High Court has pointed out that Lordships Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds.
13. The Supreme Court has considered this aspect in a series of cases from time to time. The landmark in this direction is the case of R.P. Kapur v. State of Punjab wherein the Supreme Court has observed at page 869 (of AIR) : at p. 1242 of Cri LJ (para 6):
Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed. or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused person.
In the case of State of West Bengal v. S.N. Basak , their Lordships of the Supreme Court before referring to the observations of the Privy Council in the case of Khawaja Nazir Ahmed (1945-46 Cri LJ 413) dealing with the power of judiciary as quoted earlier, observed at page 448 (of AIR) : at p. 342 of Cri LJ:
The powers of investigation into cognizable offences are contained in Chap. XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent powers of the Court under Section 561A of the Criminal Procedure Code.
In the case of S. N. Sharma v. Bipen Kumar Tiwari while considering an application under Article 226 of the Constitution of India the Supreme Court observed at page 788 (of AIR) : at p. 766 of Cri LJ (para 5):
The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.
Later at page 789 (of AIR) : at p. 767 of Cri LJ in the said judgment the Supreme Court observed in para 7:
It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code.
In the case of Hazari Lal Gupta v. Rameshwar Prasad the Supreme Court observed:
Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. The High Court was correct in dismissing the applications under Section 561A of the Criminal Procedure Code.
In the case of Jehan Singh v. Delhi Administration ; the Supreme Court observed at page 1148 (of AIR) : at p. 804 of Cri LJ paras 15 and 16:
...Prima facie, the allegations in the First Information Report, if taken as correct, did disclose the commission of a cognizable offence by the appellant and his companions. May be that further evidence to be collected by the police in the course of investigation including the hire-purchase agreement, partnership deed and the receipt etc., could confirm or falsify the allegations made in the First Information Report. But, the High Court at this stage, as was pointed out by this Court in R.P. Kapur's case (supra) could not, in the exercise of its inherent jurisdiction, appraise that evidence or enquire as to whether it was reliable or not.
"16. Might be, after collecting all the evidence, the police would itself submit a cancellation report. If, however, a charge-sheet is laid before the Magistrate under Section 173, Criminal Procedure Code, then all these matters will have to be considered by the Magistrate after taking cognizance of the case. We cannot, at this stage, possibly indicate what should be done in purely hypothetical situations which may or may not arise in this case.
In the case of Kurukshetra University v. State of Haryana the Supreme Court observed at page 2229 in para 2:
It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report, The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.
In the case of State of Bihar v. J. A. C. Saldana , their Lordships of the Supreme Court while discussing a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment, observed at page 337 (of AIR) : at p. 109 of Cri LJ (Para 25):
...Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government...Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court.
The Supreme Court observed at page 338 (of AIR) : at p. 110 of Cri LJ, Para 27:
The case is not at a stage where the Court is called upon to quash the proceedings as disclosing no offence but the case is at a stage where further investigation into the offence is sought to be thwarted by interference in exercise of the extraordinary jurisdiction. Apart from reiterating the caution administered way back in Khwaja Nazir Ahmad's case that unless an extraordinary case of gross abuse of power is made out by those in charge of investigation as noted in S. N. Sharma v. Bipen Kumar Tiwari , the Court should be quite loathe to interfere at the stage of investigation, a field of activity reserved for police and the executive.
The Supreme Court further observed in Para 28:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.
In the case of State of West Bengal v. Swapan Kumar Guha , their Lordships of the Supreme Court referred to the earlier pronouncements of the Courts. Chandrachud, C. J. (as he then Was) observed (in para 21), at page 958 (of AIR) : at p. 828 of Cri LJ:
...the condition precedent to the commencement of investigation under Section 157 of the Code is that the F.I.R, must disclose, prima facie that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such of fence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.
Later in Para 64 at page 971 (of AIR) : (at p. 841 of Cri LJ), Amarendra Nath Sen, J. delivering the judgment observed:
In my opinion, the legal position is well settled The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. The observations of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted, make this position abundantly clear. The propositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier noted are based on sound principles of justice. Once an offence is disclosed an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards t hem and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed when an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed.
Further in paragraph 65 the Supreme Court observed:
Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. In considering whether an offence into which an investigation is made or to be made is disclosed or not, the Court has mainly to take into consideration the complaint or the F.I.R. and the Court may in appropriate cases take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to the conclusion whet her an offence is disclosed or not. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence, If, on the other hand, the Court on a consideration of the relevant materials is , satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.
In the case of State of West Bengal v. Sampat Lal , the Supreme Court observed at page 205 (of AIR) : at p. 525 of Cri LJ, Para 25:
...It is sufficient to indicate that there is residuary jurisdiction left in the Court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude. The Court has to be alive to the fact that the scheme of the law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the Court.
In the case of Eastern Spinning Mills Shri Virendra Kumar Sharda v. Shri Rajiv Poddar , the Supreme Court observed in (Para 2):
We consider it absolutely unnecessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional case where noninterference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences. And frankly such is not the case. This is a routine case where information of an offence or offences has been lodged, investigation commenced, search and seizure followed and the suspects arrested. Prompt came the unusual procedure of oral applications and oral appeals and interim order interfering with investigation. And these oral applications and oral appeals followed by such orders as interim relief prayed for granted in terms of prayer which leave us guessing about prayers made, the case for granting the prayer, appreciations by a judicially trained mind and what appealed to the Court. We have serious reservations about the procedure of oral applications and oral appeals. We do not propose to finally pronounce on these vital points. On an oral appeal, the appellate Bench modified the order made by the learned single Judge and the injunction restraining investigation was vacated. However, the Investigating Officer was directed not to detain the writ petitioners i.e. respondents Nos. 1 and 2 more than one hour each on any day for the purpose of investigation. We are of the opinion that investigation must proceed unhampered by Court orders. Investigation shall proceed unhindered and uninterrupted by any order made by the High Court of Calcutta subject to the following conditions.
In the case of Pratibha Rani v. Suraj Kumar (supra), the Supreme Court observed at page 642 (of AIR) : (at p. 831 of Cri LJ), Para 57:
It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482, Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings.
14. In the case of J. P. Sharma v. Vinod Kumar , the Supreme Court observed at page 841 (of AIR) : (at p, 925 of Cri LJ), (Para 43):
The question at this stage is not whether there was any truth in the allegations made but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have committed The facts subsequently found out to prove the truth or otherwise on the allegation is not a ground on the basis of which the complaint can be quashed.
In the case of Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre , the Supreme Court observed at page 711 (of AIR) : at p. 855 of Cri LJ (Para 7):
The legal position is w ell settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak, and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
In the case of State of Bihar v. Murad Ali Khan , the Supreme Court observed at page 10 of Pat LJR : (at p. 1009 of Cri LJ) (Para 15):
It is trite that jurisdiction under Section 482, Cr. P.C. which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the chargesheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not.
15. But the fact remains that in this case the petitioners have come for quashing the first information report, First information report is the information given to the police. Information has been defined in the case of Gansa Oraon v. King Emperor (1923) ILR 2 Pat 517 : (1923) 24 Cri LJ 641 : AIR 1923 Pat 550:
An information means something in the nature of a complaint or accusation, or at least information of a crime, given with the object of putting the police in motion.
The Supreme Court in the case of State of Bombay v. Rusi Mistry First information report is the information recorded under Section 154, Cr. P.C. It is an information given to a police officer relating to commission of an offence. It is also information given by informant oil which the investigation is commenced.
In the case of Podda Narayana v. State of Andhra Pradesh the Supreme Court observed at page 1255 (of AIR) : (at p. 1065 of Cri LJ) (para 9):
Thus shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon after the occurrence. In our opinion, it is neither customary nor necessary to mention every minute detail in the F.I.R.
In the case of Nawratan Mahton v. State of Bihar 1979 Cri LJ 1295 : AIR 1980 NOC 1 the Supreme Court observed at page 1295 (para 2):
For instance, the Sessions Judge drew an inference adverse to the prosecution from the fact that certain details were not mentioned in the F.I.R. This was not a sound ground for rejecting the prosecution case as the broad details are to be given in the Court and not generalised in the F.I.R. .
In the case of State of U. P. v. Ballabh Dass the Supreme Court observed at page 1386 (of AIR) : (at p. 2011 of Cri LJ) (para 12):
It is manifest that a first information report is not intended to be a very detailed document and is meant to give only the substance of the allegations made and, therefore, the absence of the mention of a lathi would not put the prosecution case out of court.
In the case of Ram Kripal Prasad v. State of Bihar 1985 Pat LJR 271 : 1985 Cri LJ 1048, a Full Bench of this Court observed in para 26:
It is now well settled beyond cavil that a complaint or a first information report in a criminal case is not to be encyclopaedia of all the facts.
Thus even a first information report which was shorn of facts or minute of details but conveys information about the commission of an offence can be treated as first information report to set the police in motion and start investigation and absence of the details will not be a ground nor to treat it as a report.
16. A Full Bench of the Punjab High Court while dealing with investigation and F.I.R. and powers of Court in the case of Vinod Kumar Sethi v. State of Punjab has referred to a decision in the case of Saral Geopar Association v. State of Haryana 1970 Cur LJ 720 and observed at page 376 (para 6):
...the power of investigation so far as it vests exclusively in the police or investigating agency is not to be interfered with by the Courts, and the investigating agency should be left to carry on investigation without any interference. This power, clearly postulates that the investigation so long as it is in accordance with the provisions of law cannot be interfered with and it does not give immunity to investigation which is not in consonance with the relevant provisions of law governing the particular case or is in breach of them.
The Full Bench after referring to the various decisions in the cases of Khawaja Nazir Ahmad's 1945-46 Cri LJ 413(PC) (supra), Kurukshetra University v. State of Haryana 1977 Cri LJ 1900 (SC) (supra) and State of Bihar v. J.A.C. Saldanha 1980 Cri LJ 98 (SC) (supra) observed at page 378 onward in paras 12, 13, 15 and 16:
(p. 12) I am, therefore, unable to find that either the statutory provisions or the binding precedents in any way place a blanket bar against the quashing of proceedings by the High Court in its inherent jurisdiction at the investigation stage or to place the later process beyond the pale of judicial scrutiny."
(p. 13) "Having opined as above, I must strike the strongest note of caution in this context. Though I have held that the High Court would have the inherent jurisdiction to quash the investigative process in a proper case, it does not mean that this power is to be exercised indiscriminately. The affirmance of such a power is one thing but using it like the proverbial 'bull in a China shop' is altogether another. It calls for a strong reminder that even where the proceedings have reached the Court by way of a charge-sheet or in the case of the existence of a complaint before it well defined limitations for quashing the same were authoritatively spelt out in R.P. Kapur v. State of Punjab . It is broadly within the parameter spelt out thereby (though they are not absolutely exhaustive) that the power to quash proceeding has to be exercised even with regard to cases pending in the Court. It follows that even a more stringent criterion would apply in quashing a first information report and the subsequent police investigation before a charge-sheet is filed."
(p, 15) "Therefore, if the information with a police officer as recorded does not disclose any cognizable offence whatsoever then the statutory mandate for investigation would be lacking and non-existent. It, however, bears repetition that the phraseology of 'reason to suspect the commission of an offence' has to be construed liberally in favour of the investigating agency. Both on principle and on the relevant provisions of the Code. I am inclined to hold that where the recorded first information report, when accepted as true, still discloses no cognizable offence whatsoever then this would attract the inherent jurisdiction of the High Court.
17. Then the Full Bench started discussing as to what will be the position when the first information report is cryptic, not in detail or, as stated, first information report is not encyclopaedia. As found above, the Courts have given out that at times first information report is given to the police for the machinery of law to move and it becomes for the investigating agency to collect material and to submit a chargesheet or not. In such a situation, the Full Bench observed at :
However, one cannot jump to the conclusion that merely because the first information report does not disclose a cognizable offence, it must necessarily be quashed along with the consequential investigation. What has to be sharply borne in mind is the oft-repeated adage that the first information report is not an encyclopaedia of the investigation into a criminal offence. Nor is it a inflexible pre-condition for entering into an investigation. It has been authoritatively pointed out in Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 : 1945-46 Cri LJ 413 as follows:
...But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognisable offence has been committed, should not of their own motion undertake an investigation into the trust of the matters allegged....
Apart from the above, sometimes, the first information report may be recorded on the basis of very brief and inadequate facts. It may be so done either for the paucity of precise information on the point and the urgency of commencing investigation, or some times even by the inapt or if one may say so inefficient recording of the information by a very junior police officer. It has been held that there would be no bar to its foundation being no other than a cryptic and telephonic information. Therefore, the solitary factor that what has been recorded as the first information report, does not come squarely within the ambit of a cognizable offence, does not straightway warrant the quashing of the proceedings. If its subsequent investigation clearly discloses material pointing to the commission of a serious cognizable offence, the police cannot be halted in their tracks. To put it in other words, the first information report may sometimes be no more than the tip of an iceberg which on a deeper probe would lead to the discovery of a huge mass of gravely incriminating facts. This aspect was rightly highlighted by the Bench in Saral Beopar Association's case 1970 Cur LJ 720 (Punj) (supra), in the following words:
...A different view would lead to startling results. Take the case where the police finds a dead-body on the road without any obvious marks of injury on it, nobody knows how the deceased had met his end. The police is informed merely about the presence of the dead body or a police official just comes across it, can it be contended with any seriousness that in such a case if a police official starts investigation to find out whether any offence has been committed in respect of the deceased, such investigation can be stopped or should not allowed to proceed merely because the information on which it commences does not disclose a cognizable offence. It would be only after some investigation is conducted that the police will be in a position to find out whether it is a case of natural death, suicide or culpable homicide or murder. If the contention, that unless the police is able to satisfy the Court it is in possession of information about the commission of a cognizable offence, it cannot proceed to investigate, is accepted it would lead to the conclusion that in a case like the one that has been cited above, the Court must step in and stop the investigation. This, in my opinion is not warranted by the provisions of Section 561A, Criminal Procedure Code, nor by any other provision of the Code....
The Full Bench further observed in para 17 (page 380):
It necessarily follows from the above that if the first information report discloses no cognizable offence whatsoever, it would give the Court jurisdiction for entering into an enquiry for quashing the proceedings, However, this is no warrant for holding that either because a defective first information report has been recorded or at the time of commencing the investigation, the information was cryptic, yet the subsequent investigation must be quashed irrespective of all other considerations. Indeed, the true test appears to be that when challenged the investigation agency, even on the basis of all the material collected by it, is unable to show that there is reason to suspect the commission of a cognizable offence, it would be then and then alone that the inherent jurisdiction can ' warrant the quashing of the investigation itself, being a patent harassment to the accused. It deserved highlighting that the core of the jurisdiction herein is the satisfaction of the Court that it amounts to a clear abuse of power by the police. Therefore, it would be an overly technical and indeed an erroneous assumption to hold that if the first information report discloses no cognizable offence, the investigation must be quashed even though meanwhile enough incriminating material has been collected by the police agency to point to the commission of a cognizable crime. In such a situation, the Court is entitled and indeed bound to examine such material, if necessary, though always keeping the salutary rule in mind that the police has a statutory right to investigate and the judicial process should not be overly zealous to interfere into this complementary statutory power. It must, however, be made clear that the examination of the material, in this context, is not be confused with the appraising of evidence at a trial or the sufficiency thereof. The High Court cannot embark on an enquiry as to whether the evidence collected in the case is reliable or not. Reference in this connection may be made to S. P. Jaiswal v. The State where Kapur, J. adverted to the material collected in the course of investigation including the police diary for exercising the power to quash proceedings under Section 561A, Criminal Procedure Code. It must, however, be borne in mind that that was a case where the proceedings had reached the Court, though they were on a charge-sheet filed.
18. The Full Bench after referring two other decisions in S.N. Sharma, (1970 Cri LJ 764) (SC) (supra) and State of Karnataka v. L. Muniswamy concluded as follows:
p. 20. To conclude, I see no blanket bar against the quashing of a first information report and the consequent investigation (even before a charge-sheet is filed in Court), provided that the requisite pre-conditions formulated above for the exercise of the power stand satisfied. Without being exhaustive, those may be briefly summarised as under:
(i) when the first information report, even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offence;
(ii) when the materials subsequently collected in the course of an investigation further disclose no such cognizable offence at all;
(iii) when the continuation of such investigation would amount to an abuse of power by the police thus necessitating interference in the ends of justice; and
(iv) that even if the first information report or its subsequent investigation purports to raise a suspicion of cognizable offence, the. High Court can still quash if it is convinced that the power of investigation has been exercised mala fide.
19. In the case of Suresh Chandra Swain v. State of Orissa 1988 Cri LJ 1175 a learned single Judge of the Court has observed at page 1180 (in paras 10 and 11):
Hence, the inescapable conclusion is that materials collected during an investigation which is defective or unauthorised would not, merely for that reason, lose their relevancy so far as the cognizance by the Court of the offence is concerned and hence it eminently stands to reason to hold that the inherent powers of the Court would not be invoked to quash an investigation where even though the F.I.R. does not disclose the offence alleged, yet the materials collected during the investigation made in pursuance of the F.I.R. prima facie reveal an offence, since the materials may be taken into consideration ultimately by the Court for taking cognizance, unless of course it is shown that any illegality in investigation has brought about a miscarriage of justice. (p. 10) The conclusions reached may be summarised:
(1) If the F.I.R. does not disclose the commission of a cognizable offence against the accused, then the investigation commenced upon such F.I.R. is liable to be quashed.
(2) The High Court may quash such investigation either under Section 482, Cr. P.C. or under Article 226 of the Constitution of India.
(3) No such quashing of the investigation would be made if by the time the consideration is made by the High Court, materials have come to light as a result of the investigation disclosing prima facie commission of an offence by the accused; and (4) Even in such cases the investigation may be quashed if it is established that the carrying on of the investigation has resulted in miscarriage of justice, (p. 11).
Lastly in the case of Bharat Lal v. Mohan Lal Barnawal 1988 Cri LJ 1405 learned single Judge of this Court has observed at page 1407 (para 11):
'Inherent jurisdiction' to prevent abuse of 'process' and to 'secure ends of justice' are terms incapable of definition. The framers of the Code could not contemplate, so could not have provided what are the cases of abuse of process of Court. It all depends upon the facts of each case. Some of the categories of cases where the inherent jurisdiction to quash the proceeding can be exercised are cases where it manifestly appears that there is a legal bar against the institution or continuance of a proceeding in respect of an alleged offence or where the allegation in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged.
20. Thus from all these it is evidently clear that this Court has inherent power to quash a first information report, investigation, complaint or charge-sheet if looking to that no case is made out. First information report at the initial stage must disclose some cognizable offence so that the police may proceed with the investigation of the case, as it is the prerogative of the police to investigate' the same. But when taking first information report, as it is, no case, prima facie, is made out, then the allowing investigation to proceed is an abuse of the process of the Court. The Court can also quash first information report and the investigation if it is shown that it is mala fide or without jurisdiction. Court can also quash the investigation if it is found that it is not being properly conducted or it is with a view to harass or promptitude. If such things are not there and the investigation allowed to be continued, then it will lead to unnecessary harassment to a party whose liberty and property are put to jeopardy and the Courts have all along been zealously guarding the liberty and property and have not allowed it to be jeopardised. If such conditions are not there, then the investigation must not be stopped as it would encroach upon the power and prerogative of the police to investigate the cognizable offences. Once a first information report discloses an offence, then an investigation must be allowed to continue; otherwise the offender will escape the consequence of law and the offenders will go unpunished to the detriment of the society and the cause of justice will suffer. The unwarranted interference on flimsy and supposed grounds will result in miscarriage of justice. Courts have allowed the investigation to continue unhampered, unhindered and uninterrupted in accordance with law and procedure, and if this is done, then the prosecution may collect evidence which may go to two directions; one in favour of the accused finding him not guilty of the offence complained of and so a final form is the result; but if after investigation the police finds him guilty of the offence complained of then it submits report, which too becomes subject to the final scrutiny of the Court as is the final form. Court is the final authority to accept the final form or charge-sheet or to reject the same. Police duty is to collect evidence. But this collection of the evidence has not to interrupted with oblique motive because it may at times allow the evidence to evaporate, disappear or become extinct with the lapse of times to the detriment of justice, In this way the complainant or the State and also the accused suffer. At times when the first information report is not giving out full details to disclose cognizable offence then it becomes necessary that the investigation should be allowed to proceed. Just as a dead body is found on the road side and no information is there or a telephonic information comes to the police about an offence or if there is any information about suicide or murder or any offence, the details of which in the circumstances of that case could not be given at the first opportunity, though they can come during investigation; in situations like this, the hypertechnicality of saying that the first information report is not giving out the details and is lacking in other materials, to say that it should be quashed, will be a denial of justice, sufferance to the cause of society and welfare of the State. The stopping of the collection of the materials and the evidence against an offender becomes a denial of justice and is against the purpose of law. Courts have never been for the conviction of a person against whom there is no evidence. Similarly, Courts will never allow a person, against whom there is evidence to go scot free. Courts have never hindered the collection of the material and evidence and they want that it should be all in accordance with law and procedure. Courts are vigilant and zealous as regards the liberty and also the rights of an individual. When an application for quashing is moved, then Courts may give an interim protection to an accused whose life, liberty and property are concerned. But if an investigation is allowed to be stayed for a long period of time on the pretended ground of infringement of liberty, the result will be that the evidence may not be available to the investigating agency after lapse of time and after the Courts' conclusion that the application for quashing or interim stay was frivolous and vexatious and that the interim protection of the Court has been obtained with oblique motive. The time factor becomes very material in many cases which causes damage and harm to both sides in the case. The Supreme Court in the case of Bakshish Singh Brar v. Smt. Gurmej Kaur But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damages to the evidence.
So if an application under Section 482, Cr. P.C. is made, then the Court may protect the life and liberty of the accused by an interim order but may allow the investigation to continue, so that all the evidence may be collected and that may be subject to the final orders of the Court. After a lapse of time when the Court does not find force in the contention of the accused and when for the offence evidence has again to be collected, then it is found that either the evidence has disappeared or has been badly damaged at the cost of justice. Unless it is found by the Court that even the continuation of the investigation is to the detriment of justice, collection of the evidence in investigation should not be stopped, otherwise the investigation should be allowed to continue guarding the liberty.
21. In the instant case, as we have seen above, the report had been filed, which disclosed a cognizable offence whereupon the police started taking action and then recovery of the goods was made in pursuance of the search warrant. The criminal breach of trust by the accused caused the B.P.M.L. to go to Bombay, litigations in the Bombay High Court and ultimately getting of the articles under the orders of this Court. Even the award given by the Arbitrator relating to the disputed property has not supported the case of the petitioners. Thus it cannot be said that the proceedings of this case pending in the Court of learned Chief Judicial Magistrate including investigation and the first information report are liable to be quashed.
22. In the result, this application has got no force and hereby is dismissed. The stay order granted by this Court is vacated. Let the lower Court records be sent back to the Court below so that the case may be disposed of in accordance with law.