Gujarat High Court
Rasid Mohammed Vali Mohammed Khalifa vs State Of Gujarat on 12 July, 2021
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12529 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RASID MOHAMMED VALI MOHAMMED KHALIFA
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1
MS JIRGA JHAVERI, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 12/07/2021
CAV JUDGMENT
1. This is a petition preferred under Section 482 of the Code of Criminal Procedure in relation to the I-C.R.No.172 of 2012 registered with Page 1 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Vapi Police Station for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code and the addition thereafter of the provisions of Prevention of Atrocities Act under Sections 3 (1)(4) and 3 (2) (5).
2.The first informant is the Mamlatdar, Pardi, who has stated in his complaint inter alia that there was a written complaint made by Ex-
Sarpanch, Shri Nareshbhai Patel of village Salvav with regard to land bearing revenue survey No.249 paiki and other parcels of land pursuant to which, the vigilance officer after inquiring, directed the registration of the present FIR against the present accused.
3.It is the case in the FIR that the land bearing survey No.249 situated at village Salval was a new tenure land upto the year 1996-1997. The entry showed the name of Bhagwan Parag Nayka as Page 2 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 the owner of the land in the year 1998-1999 to 2004-2005. Some tampering is alleged in the revenue record & the name of Bhagwan Kika appeared as an owner and a mutation entry to the said effect was posted. It is alleged that Talati of the village entered the said name and removed the restrictions of Section 73 (AA) and the mutation entry No.5152 dated 21.10.2008 was posted. It is also alleged that the accused persons in the capacity of legal heirs of Bhagwan Kika, got their names entered into the record of rights and mutation entry No.5153 was posted on 21.10.2008.
3.1 It is further alleged that legal heirs of
Bhagwan Kika gave power of attorney on
26.03.2008 for dealing with the said land to one of the accused and the said power of attorney sold the land to other co-accused by registered sale deed. It was further then sold to other co-accused Navin Bhagwan Page 3 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Patel; however, the entry of sale was cancelled and therefore, the name of subsequent purchaser did not appear in the record of revenue.
3.2 It is alleged in the FIR that by tampering the revenue record, the said land was dealt with though the same was 73 (AA) land and therefore, by tampering with revenue record, the offence is said to have been committed.
3.3 The present applicant was serving as Deputy Mamlatdar, Pardi from the period 26.06.2008 to 02.11.2009. He was superannuated on 31.03.2011. He posted the two entries No.5152 and 5153 in connection with the said land. He, therefore apprehended his arrest in connection with the said offence and therefore, he preferred anticipatory bail before the District and Sessions Page 4 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Court, Valsad being Criminal Misc.
Application No.303 of 2013, which was
rejected by Additional Sessions Judge,
Valsad on 20.06.2013.
3.4 He then preferred an application for
anticipatory bail before this Court being Criminal Misc. Application No.11546 of 2013, which too was not pressed on 23.07.2013 in view of the bar under Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
He, therefore, has approached this Court seeking quashment of the FIR.
3.5 The applicant has urged that the entry No.5152 which is an entry of successor of deceased Bhagwan Kika was mutated by him since the death certificate along with the affidavit and the documents of extract of village Form No.7/12 had been produced. It Page 5 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 was produced before the Deputy Mamlatdar, E Dhara for getting their names entered into the record of right. The Deputy Mamlatdar, E-Dhara processed the request. Thus, looking at the certified documents of the land in question, the present applicant has posted the entry. Therefore, it is wrong to say that he has committed the offence of forgery as alleged in the FIR.
3.6 So far as the deletion of restriction of
Section 73 (AA) from 7/12 extract is
concerned, admittedly, according to the
said application, the allegation in the
FIR explains that the offence is committed by the then Talati of the village, who has arrested and as per the best of the knowledge of the present applicant he is enlarged on regular bail. Therefore, if there is any tampering at all is indicated in the FIR, the first informant himself, Page 6 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 who is the Talati is responsible and no offence of forgery can be said to have been committed by the present applicant.
3.7 So far as the entry No.5153 in connection
with the said land is concerned, it is
urged that the entry is of giving effect of the sale of land in question by a registered sale deed after following the due process of law and procedure of issuance under Section 135 (D) of the Land Revenue Code when no objection had been received at the end of 30 days, the entry has been mutated. He has thus urged that the applicant has not committed any offence of forgery, but has acted in the official duty and had posted the entries after following the due process.
Therefore, when he has followed all the necessary procedure, he cannot be roped in. subsequently, an amendment came to be Page 7 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 made in the application as the charge-
sheet qua other co-accused has already been filed, but this applicant has been shown as accused. The grievance is made that he has since not committed any offence, he cannot be reflected as the accused.
4. Following are the prayers sought for:
"5...
(a) Your Lordships may be pleased to allow this petition;
(b) Your Lordships may be pleased to quash and set aside the FIR being C.R.No.I-172/2012 registered with Vapi Town Police Station, Valsad qua the present petitioner;
(C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the further investigation of FIR being C.R.No.I-
172 of 2012, registered with Vapi Town Police Station, Valsad qua the present petitioner;
Page 8 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021
(g) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice."
5.This Court on 08.08.2013 passed the following order:
"Learned APP, Shri Kodekar to receive instructions in respect of the actual role of the present petitioner. Till then no coercive steps against the petitioner in respect of the complaint in question in each petition.
Adjourned to 21.08.20. Direct service permitted."
This ad interim relief granted on
08.08.2013 has continued till the date.
The Court on 03.10.2013 by way of ad
interim relief stayed further proceedings to the FIR registered with Vaapi Town Police Station being I-C.R.No.172 of 2003.
6.This Court has heard the learned advocate, Mr.Aadil Mirza appearing for the applicant and learned APP, Ms.Jirga Jhaveri for respondent-
State.
Page 9 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 6.1 According to learned advocate, Mr.Aadil Mirza, the applicant was serving as Talati-cum-Mantri from 26.06.2008 to
02.11.2009. His date of superannuation is 31.03.2011. The entry No.5152 was posted on 21.10.2008. According to him, it is wrong to make a mention that by changing and tampering the old tenure has been entered although it was a new tenure land.
6.2 He has further urged that Arvindbhai Parmar was the Talati-cum-Mantri from the year 1998 to 1999. Charge-sheet has also not been filed qua the present applicant. He was not clear as to whether the trial has proceeded or not qua others.
6.3 For the offence which has been committed
between 1998-1999 to 2004-2005 to
27.11.2009, the FIR has been lodged on
07.06.2012, which is quite delayed and not Page 10 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 explained.
6.4 Learned APP has strongly resisted this on the ground that there is no investigation qua this person. He has come at the stage where there is absolutely no opportunity for the Investigating Agency to find out his role. If he is innocent, nobody is likely to rope him unnecessarily. She has further urged that what is the likely outcome of the investigation is not known to anyone and therefore, no discretion is to be continued in his favour qua the others, the trial has not been yet completed.
7.On thus hearing learned advocates on both the sides for the following reasons this application deserves rejection:
8.At the outset, it is to be mentioned that the Page 11 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 District Land Vigilance Committee had inquired into the tampering of the Government Record concerning Revenue Survey Nos.570, 571, 249 paiki and 315. At issue No.4 in its address to the Vaapi Town Police Station on 02.06.2012, in the communication addressed by Mamlatdar Pardi, Shri L.R.Chaudhary states that the original owner of the land situated at Salvav, Taluka: Pardi being survey No.249 paiki was one Shri Bhagwanji Parag Nayka, who had been given this land as per the Tenancy Act and therefore, the type of land is under Sections 73(AA) & 43 of the Tenancy Act. On his death, Keshav Parag and on his death the heir was Vasantbhai Keshavbhai, was the heir. However, on the death of Vasantbhai Keshavbhai, name of Bhagwanji Kika Kodi Patel is shown to have entered and the names of his heirs also have been entered.
They have given a bogus power of attorney to one Mr.Dhansukh Nanubhai Patel, who sold the said land to one Shri Hanshraj Bhanushali and thereby has made a clear breach of Section 73(AA) of the Tenancy Act. It has caused loss to the Government of its premium and therefore, the 12 persons have Page 12 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 been made accused who are found to be responsible.
9.It also includes the name of the then Talati-
cum-Mantri Shri Arvind Parmar. Pursuant to this, the FIR came to be lodged being I-C.R.NO.172 of 2013 by Shri L.R.Chaudhary - Mamlatdar, Pardi, District Valsad on 07.06.2012 within five days of a receipt of complaint from Mamlatdar, Pardi and where he has particularly alleged that there is tampering and also the change of the Government Record and instead of Bhagwan Parag, Bhagwan Kika is shown to be the possessor of the land. This appears to have happened during the tenure of Talati-cum-Mantri Shri Arvind Parmar and he is alleged to have changed and relaxed the fetter put by Section 43 and 73(AA) of the Tenancy Act. It directly has an effect on the computerized record and in the entry No.5452 dated 21.10.2008, the names have been wrongly entered of the heirs of Bhagwan Kika, who was at no point of time in picture. The original possessor and the tenant was Bhagwan Parag Page 13 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Nayka.
10. During the course of the investigation, name of the present applicant is revealed. It was the Vigilance Officer, who had inquired and directed to register the present FIR against the accused persons. It was a written complaint filed by Ex-
Sarpanch of village Salvav in relation to the land bearing survey No.249 paiki. Pursuant to the said written complaint and after the Vigilance Officer had scrutinized and sent a report to register the FIR, that the proceedings have been initiated.
11. The applicant was Deputy Mamlatdar, Pardi from 26.06.2008 to 02.11.2009. It was during his tenure that this offence is said to have been committed. It is worth noting that the applicant had moved anticipatory bail being Criminal Misc.
Application No.303 of 2013 before the Sessions Court, Valsad, which has not been entertained and the same has been rejected by the Sessions Judge, Valsad on 26.06.2002. An application for Page 14 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 anticipatory bail had also been preferred before this Court being Criminal Misc. Application No.11546 of 2013 which eventually had also not been pressed which amounted to its rejection.
After the same had not been pressed on 23.06.2013, the applicant approached this Court by way of the present application under Section 482 of the Code of Criminal Procedure.
12. It is prematured for the Court to entertain this application. The applicant being a Government Servant and at a position where he had the authority, power and discretion to mutate the entry and allegedly as per the complaint itself, the two of the entries No.5152 and 5153 have been certified during his tenure on 21.10.2008. Admittedly, the present applicant was serving as Deputy Mamlatdar, Pardi for the period from 26.06.2008 to 02.11.2009. Noticing the fact prima facie that these two entries Nos.5152 and 5153 as mentioned in the FIR were posted, during the tenure of the applicant as Page 15 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Deputy Mamlatdar at village Salvav, his application for anticipatory bail was rejected which also was preferred under the apprehension that he would be arrested by the Investigating Agency.
13. There will be a requirement for the Investigating Agency to inquire into this matter thoroughly as it is after the due scrutiny on the basis of the complaint received from a responsible person of the village that the Vigilance Officer has inquired and thereafter, on the basis of such report of the Vigilance Officer and communication addressed to the Police Inspector that the complaint has been lodged by none other then the Mamlatdar himself. In such circumstances, it simply cannot be said by any stretch of angle that this matter is initiated against the present applicant by way of malicious prosecution. The applicant, in fact, has not been named in the report, which has been addressed on 02.06.2012 to the Police Inspector, although 12 other people have been named there. It was only during the course of investigation when it was realized that the Page 16 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 applicant had held the post of Deputy Mamlatdar and two of the entries have been mutated during his tenure, that the police started investigating and needed to also inquire from him as the public servant is obligated to response to such a call from the Police Inspector to reach to the truth of the matter.
14. No protection can continue so far as this applicant is concerned. He has also been shown as an accused in the charge-sheet, which has been filed against some of the other accused.
15. Apt would be to refer to the decision of the Apex Court in relation to the quashment of the FIR rendered in case of Ravindra Kumar Madhanlal Goenka and another vs. Rugmini Ram Raghav Spinners Private Limited reported in 2009 (11) SCC 529 where the Court has held that while entertaining the petition under Section 482 of the Code of Criminal Procedure the material furnished by the defence cannot be looked into, Page 17 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 which shall need to be entertained only at the time of trial. If there is a prima facie material available, the quashing of the criminal proceedings cannot be entertained. Investigating Agency must have a freedom to inquire and investigate into the gamut of the allegation and to reach to the conclusion of its own.
Preamption of such investigation would be justified only in the extreme case.
16. Recent decision of the Apex Court rendered in case of M/s Neeharika Infrastructure Pvt. Ltd vs. State of Maharashtra and others in Criminal Appeal No.330 of 2021 deserves specific reference at this stage, where the Apex Court was considering the order passed by the Division Bench of the High Court of judicature at Bombay dated 28.09.2013 in an application filed by the private respondent under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure with a prayer to quash the criminal proceedings being FIR No.367 Page 18 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 of 2019 dated 19.09.2019. The High Court directed that "no coercive measures shall be adopted"
against the original accused in respect of the said FIR, and the original complainant has preferred the present appeal before the Apex Court. The Court also noted that the original accused filed anticipatory bail application before the trial Court and the Sessions Court, Mumbai granted interim protection from arrest to the accused. It was extended from time to time and continued nearly for a year thereafter.
16.1 During the pendency of the anticipatory bail application, the original accused preferred petition before the High Court of judicature at Bombay under Article 226 of the Constitution of India r/w Section 482 Code of Criminal Procedure. In that matter also the High Court had directed no coercive measure to be adopted against the original accused Nos.2 to 4 in respect of Page 19 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 the FIR. When this order was passed, the complainant had pointed out that the application of the original writ petitioner was pending before the Sessions Court for hearing and the Sessions Court may get influenced by the said order. Therefore, the Division Bench had directed the Sessions Court to decide the anticipatory bail application on its merits. However, on the directions of no coercive measures to be adopted, the appeal came to be preferred before the Apex Court, where the Court extensively heard both the sides and the principal issue which has considered by the Apex Court was as follows:
"when and where the High Court would be justified in passing an interim order either staying the further investigation in the FIR/complaint or interim order in the nature of "no coercive steps" and/or not to arrest the accused either pending investigation by the police/investigating agency or during the pendency of the Page 20 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India pending before the High Court?". The Court examined extensively the parameters of exercise of powers by the High Court under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India for quashment of the complaint/FIR.
16.2 While dealing with the various case laws on the subject, the Apex COurt eventually concluded on the principal issue that the High Court when is prima facie of the opinion that an exceptional case was made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India shall need to give brief reasons as to why such interim order Page 21 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 is warranted. It is required to reflect and demonstrate its application of mind so that the higher forum can consider as to what has weighed with the High Court while passing such interim order.
16.3 Apt would be to refer to the relevant &
vital paragraphs of the decision of the
Apex Court rendered in case of M/s
Neeharika Infrastructure Pvt. Ltd (supra).
"7.4 In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the Page 22 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise Page 23 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations.Page 24 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022
R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short- circuit a prosecution and bring about its sudden death.....
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the Page 25 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is Page 26 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in paragraph 11, this Court has observed and held as under:
"11. ... the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its Page 27 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not Page 28 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."
7.6 In the case of Sanapareddy Maheedhar Seshagiri (supra), in paragraph 31, it is observed and held as under:
Page 29 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 "31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court.
In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the Page 30 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC."
8. While considering the issue involved, the rights and duties of the police to investigate into cognizable offences are also required to be considered.
8.1 The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 deals with information in cognizable offence and Section 156 with investigation Page 31 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 into such offence and under these sections the police have the statutory right to investigate into the circumstances of any alleged cognizable offence.
8.2 The Privy Council in the case of Khwaja Nazir Ahmad (supra) observed that in India, 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. It is further observed that it would 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. It is further observed that 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.
9. When the High Court would be justified in interfering with the investigation by the police, while exercising the inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, few decisions of this Court are required to be noticed and referred to, which are as under.
Page 32 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 9.1 In the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554, this Court, after referring to the precedents including the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), has observed in paragraphs 25 and 26 as under:
"25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. 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. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. 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 Page 33 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 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. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad [AIR 1944 PC 18 :
1944 LR 71 IA 203, 213] where the Privy Council observed as under:
"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, Page 34 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code 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."
26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary."
In the said decision, this Court also took note of the following observations made by this Court in the case of S.M. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653:
"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 Page 35 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 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.
9.2 In the case of Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195, in paragraph 20, it is observed and held as under:
"20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency."
9.3 In the case of Bhajan Lal (supra), it is observed and held by this Court that save in exceptional cases where non interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of the investigation of offence. It is further observed that in a routine case where Page 36 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 information of an offence or offences has been lodged, investigation commenced, search and seizure followed and suspects arrested, the resort to the unusual procedure of oral applications and oral appeals and interim stay order thereon would have the effect of interfering and staying the investigation of offences by the investigating officer performing statutory duty under Cr.P.C.
9.4 In the case of Ujjal Kumar Burdhan (supra), it is observed and held by this Court that unless case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at early/premature stage of investigation.
18. This Court in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest thepetitioners during the pendency of the investigation. While setting aside such order, it is Page 37 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that "it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation". It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Page 38 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 Magistrate concerned. It is observed that such orders are dehors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:
"25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind."
19. We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra), deprecating such orders passed by the High Courts of not to arrest during the pendency of the investigation, even when the quashing petitions under Section 482 Cr.P.C. or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid Page 39 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.
22. Criminal Miscellaneous Petition No. 4961 of 2021 has been preferred by respondent nos. 2 to 4 herein - original accused under Section 340 r/w Section 195 (1) (B), Cr.P.C. for initiating action against the appellant. It is alleged that the appellant has suppressed the vital documents/agreements and the facts and by suppressing the material documents/agreements and the facts has obtained an interim order dated 12.10.2020 from this Court, staying order dated 28.09.2020 passed by the High Court Number of submissions and counter submissions have been made by the learned counsel for the respective parties. However, considering the fact that the quashing petition is yet to be considered by the High Court on merits, we do not propose to entertain the present application and enter into the merits of the allegations in the present application. However, it will sufficed to say that this Court has passed an interim order dated 12.10.2020, staying order dated 28.09.2020 passed by the High Court, by giving brief reasons and even if the documents/agreements which are alleged to have been suppressed would have been there, it would not have any bearing on the interim order passed by this Court. What Page 40 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 is weighed while passing interim order dated 12.10.2020 is very clear from the interim order dated 12.10.2020. Therefore, we close the criminal miscellaneous petition No. 4961/2021 and consequently the same stands disposed of.
23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
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;Page 41 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022
R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the Page 42 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 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 non-interference 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 do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds Page 43 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to Page 44 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
Page 45 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
24. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned interim order/direction contained in clause (d) of the impugned interim order dated 28.09.2020 by which the Page 46 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 High Court has directed that "no coercive measures to be adopted" against the petitioners (respondent nos. 2 to 4 herein) in respect of FIR No. 367/2019 dated 19.09.2019, registered at Worli Police Station, Mumbai, Maharashtra (subsequently transferred to Economic Offence Wing, Unit IX, Mumbai, renumbered as C.R. No. 82/2019) is hereby quashed and set aside. However, it is made clear that we have not expressed anything on the merits of the case, more particularly the allegations in the FIR and the High Court to consider the quashing petition in accordance with law and on its own merits and considering the afore-stated observations made by this Court in the present judgment.
25. Having regard to the fact that despite the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and other decisions, referred to hereinabove, some High Courts have continued to pass such interim orders, we direct the Registry to forward a copy of this judgment to all the High Courts to be placed before Hon'ble the Chief Justice to circulate to all the Judges of the High Courts."
17. Resultantly, this application is dismissed and interim order also is vacated. The Investigating Officer shall expedite the Page 47 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022 R/CR.MA/12529/2013 CAV JUDGMENT DATED: 12/07/2021 investigation qua the present applicant and as far as possible shall complete the same within a period of eight weeks from the date of receipt of a copy of this order. The Trial Court, if has already initiated the trial, the copy of additional charge-sheet at the end of the further investigation shall be permitted to be placed before the Court concerned and if, the trial is already concluded, the separate number shall be given to such additional charge-sheet, if filed eventually. None of the findings and observations shall in any manner prejudice the rights of the parties.
Sd/-
(SONIA GOKANI, J)
18. Today, on the pronouncement of the judgment, learned advocate, Mr.Adil Mirza has made a request for continuing the interim relief for the period of 08 weeks.
19. In wake of the discussion of ratio decision of the Apex Court rendered in case of M/s Neeharika Infrastructure Pvt. Ltd (supra), this Court is disinclined to accede to the request.
Sd/-
(SONIA GOKANI, J) M.M.MIRZA Page 48 of 48 Downloaded on : Sat Jan 15 23:27:20 IST 2022