Orissa High Court
Suresh Chandra Swain vs State Of Orissa on 12 October, 1987
Equivalent citations: 1988CRILJ1175
ORDER L. Rath, J.
1.This is an application invoking the powers of this Court under Section 482, Cr.P.C. for quashing the proceedings in G.R. Case No. 144 of 1986 pending in the court of the S.D.J.M., Champua since the F.I.R. on the basis of which the investigation has started does not disclose any offence. The F.I.R. was lodged by the Executive Officer, N.A.C., Joda on 3-4-86 stating that it had been found in course of audit of the accounts of N.A.C. for the year 1984-85 of the petitioner having misappropriated a sum of Rs. 1,302/- through adoption of fraudulent process and that the amount related to collection vide miscellaneous receipt Nos. 841 to 852. It is the petitioner's case that the audit referred to in the F.I.R. as its basis did not disclose any offence against the petitioner, much less found him to have misappropriated any money, and hence the F.I.R. being based on such audit report, the investigation commenced upon it is liable to be quashed The petitioner has extracted the relevant portion of the audit report in the petition which runs as follows:
XXX XXX XXX On verification of the stock register of the Misc. Receipt Books it was seen that Misc. Receipt Book No. 9 containing receipt Munda the then Cashier. The collection made in the receipt Nos. 841 to 857 amounting to Rs. 1302/- entered in the his cashier's cash book in fictitious manner. As such Sri Manguli Charan Munda, Ex-Cashier, now Control Inspector is responsible in the above case and the amount of Rs. 1302/- need to be recovered from him.
In response to paras-10.1. to 10.12 above the E.O. agreed to effect recoveries from the persons at fault.
In respect of all the above cases of misappropriation Sri Suresh Chandra Swain the then Head Clerk-cum-Accountant seriously defaulted without exercising proper supervision and check over the accounts matters. Sri B.D. Mohanty the then Executive Officer also failed to exercise proper control.
2. It is fairly conceded by the learned Additional Government Advocate, as is evidenced by order No. 11 dt. 3-6-87, that the audit report on the basis of which the F.I.R. has been lodged does not disclose any offence under Section 409,1.P.C. The learned Additional Standing Counsel who ultimately conducted the case at the hearing stage, however, has contested the case raising two questions : (1) that an application under Section 482, Cr.P.C. does not lie to quash an investigation and that the powers under the section can be invoked only to quash a proceeding after cognizance has been taken, and (2) that in any view of the matter, since the investigation of the case was not stopped and during the investigation certain other statements have come in implicating the petitioner in a case of misappropriation, the power under Section 482, Cr.P.C. cannot be exercised to quash the investigation only because the F.I.R. does not disclose any offence.
3. So far as the first submission is' concerned, it stands liquidated by the weight of authorities. Section 482, Cr.P.C. saves the inherent powers 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. In terms, the section is not confined only to proceedings before the court after cognizance has been taken. This is a plenary power so as to secure he ends of justice and there is nothing which prevents the inherent powers of the court to reach its hands where an obvious injustice is perpetrated in the shape of investigation Examining the question in (R.P. Kapur v. State of Punjab) it was held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice though ordinarily, the High Court would be reluctant to interfere with the said proceeding at an interlocutory stage and as an example of the categories of cases where proceedings could be quashed under inherent jurisdiction it was stated that where manifestly a legal bar exists against the institution or continuance of the criminal proceeding in respect of the offence alleged, say, absence of sanction where it is requisite; or where the allegations in the First Information Report or the complaint, as the case may be, even if, they are taken at their face value and accepted in entirety do not constitute the offence alleged; or where the allegations made do constitute an offence but there is either no legal evidence in support of it or the evidence adduced clearly or manifestly fails to prove the charge; though so far as the last case is concerned the distinction between absence of legal evidence or acceptance of evidence which is ex facie inconsistent to the accusation made and the existence of legal evidence which on its appreciation may or may not support the accusation in question is to be kept in view and that the High Court in exercise of its inherent jurisdiction would not embark upon an enquiry as to whether the evidence as it exists is reliable or not which is the function of a trying Magistrate. The matter came to be again examined by the Supreme Court in (State of West Bengal v. Sanchaita Investments), where the petitioners, the partners of the Sanchaita Investments, moved the High Court to issue a writ of mandamus directing the State Government and its concerned officials to "forthwith recall, cancel and withdraw the first information report. and all proceedings taken on the basis thereof." In the case, the F.I.R. alleged an offence against the petitioners of violation of Section 3 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 punishable under Section 4 of the said Act. The Calcutta High Court held the activities of the firm to fall beyond the provisions of that Act and the search and seizure to be illegal and improper, and hence the proceedings were quashed directing return of all the documents and refund of the cash money seized to the writ petitioners. The matter came before the Supreme Court on special leave by way of appeal at the instance of the State of West Bengal. Dismissing the appeal the Supreme Court held that no offence had been disclosed under the Act and hence it would be manifestly unjust to allow the process of investigation against the alleged offence to be completed 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. Being of such opinion, the court saw no alternative save to stop all further investigations on the basis of the F. I.R. as laid.
4. While the learned Additional Standing Counsel concedes the position that in appropriate cases an investigation under the Cr.P.C. can be quashed by the High Court acting under Article 226 of the Constitution yet he contends that no such power is available to be exercised under Section 482, Cr.P.C, since according to him a power which is exercisable under Article 226 cannot also be exercisable under its inherent powers as saved by the Cr.P.C. Developing the submission, it was urged that under the Cr.P.C. of 1898, Section 491, Cr.P.C. empowered the High Court to issue directions in the nature of habeas corpus and the same powers were also exercisable by the High Courts under Art 226 of the Constitution for issue of writs in the nature of habeas corpus. Because of the existence of such dual provisions, Section 491 of the 1898 Code was not adopted in the new Cr.P.C. and no corresponding provision has been made. The submission has no force. Section 491 of the old Cr.P.C. existed simultaneously with Article 226 of the Constitution which is wider in scope and application. No decision could be cited by the learned Additional Standing Counsel showing the provisions of Section 491, Cr.P.C. to have been abrogated impliedly by the provisions of Article 226 of the Constitution and indeed, even though there were areas in which both the provisions were applicable, yet there were some areas of application where the extent of Section 491, Cr.P.C. did not cover. In the Supreme Court decision (supra) various authorities were analysed in the context of quashing of a first information report by the High Court under Section 561-A, Cr.P.C. (1898 Code) even though the case before the Supreme Court arose out of a proceeding under Article 226 of the Constitution of India, and on the basis of such analysis the conclusion was reached that 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. In (Delhi Development Authority v. Smt. Lila D. Bhagat), the Supreme Court, even though on facts held that the quashing of the proceedings in the particular case was not called for, yet laid down the law by stating that in an appropriate case it may be, rather, is, permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in,exercise of the inherent or revisional powers of the High Court. There is thus express authority that a proceeding under the Criminal P.C. is available to be quashed by the High Court either under the extraordinary powers under Article 226 of the Constitution of India or under the inherent powers under Section 482, Cr.P.C. or under the revisional power under Section 397. Thus, the power to quash under either of the provisions is concurrently or alternatively exercisable by the High Court so far as proceedings are concerned. There can be no logic to say that powers which are exercisable in respect of proceedings cannot be applied in respect of investigations, particularly when Section 482, Cr.P.C. itself does not clamp any limitations therein as suggested, though however it is true that under Section 397 obviously an investigation cannot be quashed since that section empowers the High Court or the Sessions Judge, as the case may be, to call for and examine the records of any proceeding before any inferior criminal court only. In that view of the matter, I do not find any force in the contention of the learned Additional Standing Counsel so far as his first submission is concerned.
5. The second submission of the learned Additional Standing Counsel is that the F.I.R, is not the summum bonum of the prosecution case and that it only sets in motion the investigation and ultimately if during investigation other materials are unearthed pointing to the guilt of the accused, then the results of the investigation cannot fail merely because the F.I.R. would fail. On such premises, he has placed the statements of three persons, Durga Charan Rout, Rambilash Sahu and Nilamani Mohanty, recorded under Section 161., Cr.P.C, of which the statement of the first person is to the effect that the petitioner as the ex Head Clerk-cum-Accountant had collected the sum alleged to be misappropriated through the miscellaneous receipt books which had been received by him from one Manguli Ch. Munda for verification, but had not been handed over to him again and that the petitioner had entered the amount in the cash book on 14-7-84, but had not mentioned in the remarks column that the amount had been deposited in the bank. His further statement is that the petitioner was directed by a letter to refund the misappropriated amount after which he sent the amount to the N.A.C. office. There also appears to be some other statements against the petitioner.
6. Mr. S.P. Misra, learned Counsel appearing for the petitioner, on the contrary submitted that once it is held that the F.I.R., even if it is taken at its face value, does not disclose an offence against the petitioner, then the investigation started upon it is stillborn and unearthing of some materials which have supposedly come into existence during the investigation would not breathe a life into it. In support of his submission, Mr. Misra places reliance on some observations in (supra), where in it was observed by Chandrachud, C.J. that an F.I.R. which does not allege or disclose the essential requirements of a penal provision, cannot form the foundation or constitute the starting point of lawful investigation and that an investigation can be quashed if no cognizable offence is disclosed in the F.I.R. since it would not be within the province of the police to investigate into a report which does not disclose the commission of a cognizable offence and that the condition precedent for commencement of an investigation under Section 157 of the Cr.P.C. is that the F.I.R. must disclose prima facie the commission of a cognizable offence. The police has no unfettered discretion to commence investigation, the right being conditioned by the existence of a reason to suspect the commission of a cognizable offence, and that there can be no such reasonable suspicion unless the F.I.R. prima facie discloses the commission of an offence.
7. Section 157 of the Cr.P.C. authorizes the officer-in-charge of a police station to commence investigation if from the information received or otherwise he is satisfied regarding the commission of a cognizable offence. The condition precedent for investigation is the satisfaction of the police officer regarding the commission of an offence and such satisfaction may be either based on an information received or otherwise. The lodging of an F.I.R. is not a condition precedent to start investigation since there may be materials otherwise to satisfy the officer-in-charge that a cognizable offence appears to have been committed and an investigation into the same is necessary. It is in such context that AIR 1945 PC 18 : 1945-46 Cri LJ 413 (Emperor v. Khwaja Nazir Ahmad) (State of Uttar Pradesh v. Bhagwant Kishore Joshi) and (Apren Joseph alias Current Kunjukunju v. State of Kerala) held that F.I.R. is not condition precedent for setting into motion a criminal investigation. Even in (supra) Justice A.N. Sen whose analysis of the various decisions regarding quashing of the investigation was agreed to by Chandrachud, C.J. 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 inappropriate 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 whether 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.
It was thus the view of the Court that prima facie disclosure of the offence would not only depend upon the F.I.R. but also on other relevant materials. In that case, investigation had already proceeded and various documents and papers were seized, as also cash. Besides, in the writ petition before the High Court affidavits had also been filed on behalf of the prosecution making allegations against the firm. All such facts were considered as relevant materials vide para 66 of the judgment, but however on a consideration of not only the F.I.R. but also other materials, the conclusion was reached that n6 offence had been disclosed in terms of Section 3 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Even Chandrachud, C.J. remarked (para 13) that it was clear that even though the State of West Bengal and its concerned officers submitted detailed affidavits to theHigh Court, yet there was no clear basis for alleging and no material was disclosed to show that prima facie the firm was guilty of the offence alleged.
8. On the above premises, it would be reasonable to conclude that if the materials collected during the investigation had disclosed the offence alleged, then the investigation was not liable to have been quashed and it is in this context, the observations made by Chandrachud, C.J. of the F.I.R. being a condition precedent, is to be read. It is to be observed that in the judgment, Chandrachud, C.J. nowhere said that the investigation, even if would have brought in some materials prima facie pointing to the guilt of the accused, would still have been quashed.
9. The matter can also be viewed from another angle. A Magistrate may take cognizance of an offence under Section 190 : Cr.P.C. apart from a private complaint either upon a police report of the facts which constitute the offence or upon information received from any person other than a police officer or upon his knowledge that such offence had been committed. Since a Magistrate can take cognizance not only upon a police report, but also on information received from any other person, or even upon his own knowledge, a cognizance taken by him of the offence alleged on the basis of the materials collected during a defective investigation or an investigation carried on without authority would not ipso facto be bad. The question was settled in (H.N. Rishbud v. State of Delhi) where refuting such a contention it was held:
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance....
...It is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.
The Court further opined that such an invalid report may either fall under Cl. (a) or Cl (b) of Section 190(1).
10. 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.
11. 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.
12. Applying the principles as discussed above, it is seen that even though the F.I.R did not disclose the commission of he offence by the petitioner, yet some other materials have come into existence implicating the petitioner in the offence alleged and hence the investigation cannot be quashed.
13. In the result, the petition has no merit and is dismissed.