Madhya Pradesh High Court
Shri Tanweer Seraj vs The State Of Madhya Pradesh on 19 July, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 W.P. No.14464/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JULY, 2024
WRIT PETITION No. 14464 of 2023
SHRI TANWEER SERAJ AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
.........................................................................................................................................................
Appearance:
Shri Ashok Lalwani - Advocate for petitioners.
Shri Gajendra Parashar - Panel Lawyer for the respondent No.1/State.
Shri E.N. Siddiqui - Advocate for respondent No.2.
............................................................................................................................................
ORDER
This petition under Article 226 of Constitution of India has been filed seeking following reliefs:
"7.1 To issue suitable writ or writs commanding the prosecution to hold preliminary enquiry on the basis of documents furnished with the representation and file final report u/s 173(2) of CrPC exonerating, the petitioners from the offences alleged against them.
7.2 The respondent no.1 if not being satisfied with the documents and needs to investigate the allegations in person from the petitioners, it may either send its officer to Australia or bear the expenses of the petitioners for their travel to Bhopal. 7.3 That the respondent no.1 be commanded for prosecuting the respondent no.2 for lodging false FIR.2 W.P. No.14464/2023
7.4 To-pass any other order deemed fit in the facts of the case."
2. It is submitted by counsel for petitioners that respondent No.2 has lodged an FIR in Crime No.116/2023 at Police Station Mahila Thana, District Bhopal for offence under Sections 498-A, 354, 506, 34 of IPC and Section 3/4 of Dowry Prohibition Act. It is submitted by counsel for petitioners that the FIR lodged by respondent No.2 against petitioners is bad. According to the FIR, the respondent No.2 got married to Zain Tanweer on 05.12.2021 in accordance with Muslim rights and rituals. The marriage was performed at Bhopal. After her marriage she went to her matrimonial house on 17.07.2022. Her matrimonial house was situated at House No.213 Block D, Defence Colony, Police Station Jajmau, District Kanpur. When she went to her matrimonial house, her husband Zain Tanweer, father-in-law Tanweer Seraj, mother-in-law Raffat Zareen, younger brother-in-law Zaid Tanweer and Ali Tanweer started harassing her on the question of dowry although her parents had given sufficient dowry in accordance with their financial condition. The petitioners started demanding Rs.10 Lakh and a Baleno car, whereas her father had already spent more than his financial ability and his financial condition was not such where he could have fulfilled the demand raised by petitioners. Because of that, the petitioners started passing taunts, using filthy language as well as also used to beat her and in various manners they were harassing her physically and mentally. When she went to her matrimonial house, her father-in-law Tanweer was having an evil eye on her and was misbehaving with her and was teasing her. When she made a complaint to her husband, then he too misbehaved with her. Her husband was working as a Software Engineer in TCS Company at Delhi. On account of job of her husband, she alongwith all 3 W.P. No.14464/2023 petitioners went to Sidney (Australia) on 25.09.2022 and thereafter they came back to Kanpur on 08.01.2023. Even then, the petitioners continued to quarrel with her and beat her on account of non-fulfillment of demand of dowry and she was turned out of her matrimonial house with a clear direction that unless and until she brings an amount of Rs.10 Lakh and a Baleno Car, she should not come back to her matrimonial house otherwise she will be killed. She informed this incident to her father and came back to her parental home and since then she is residing in her parental home at Bhopal. She tried to save her married life but she could not succeed and accordingly, the FIR was lodged.
3. Challenging the FIR it was submitted by counsel for petitioners that unless and until a preliminary inquiry is conducted, the investigation which is being done by the Police is bad in law. It is further submitted that the alleged atrocities were committed at Kanpur and therefore, Mahila Thana, Bhopal has no jurisdiction to register and investigate the crime. To buttress his contention, the counsel for the petitioners has relied upon the judgments passed by Supreme Court in the cases of Rashmi Chopra Vs. State of Uttar Pradesh and Another reported in (2019) 15 SCC 357, Prashant Bharti Vs. State (NCT of Delhi) reported in (2013) 9 SCC 293 and Doliben Kantilal Patel Vs. State of Gujarat and Another reported in AIR 2013 SC 2640.
4. Per contra, petition is vehemently opposed by counsel for the complainant as well as the State. It is submitted by counsel for complainant that it is specifically mentioned in the FIR that respondent No.2 was ousted from her matrimonial house on account of non- fulfillment of demand of dowry and it is well established principle of 4 W.P. No.14464/2023 law that compelling a married woman to live in her parental home on account of non-fulfillment of demand of dowry is a cruelty and since a part of cruelty has taken place within the territorial jurisdiction of Mahila Thana, Bhopal therefore, it has a jurisdiction to register the FIR as well as to investigate the same. So far as the holding of preliminary inquiry is concerned, it is submitted by counsel for respondents that it is merely desirable and FIR cannot be quashed merely on the ground that it was not preceded by any preliminary inquiry. It is further submitted that the suspects have no right of pre-audience either before registration of FIR or during the investigation. To buttress his contention the counsel for respondent No.2 has relied upon the judgments passed by the Supreme Court in the cases of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others reported in (2021) 19 SCC401, Narender G. Goel Vs. State of Maharashtra and Another reported in (2009) 6 SCC 65 and a judgment passed by the this Court in the case of Meera Yadav Vs. State of Madhya Pradesh and Others decided on 26.09.2023 in W.P. No.9743/2022.
5. In reply, it is submitted by the counsel for petitioners that it is incorrect to say that all the petitioners have returned back from Australia and petitioners have also provided the documents to the investigating agency by sending through E-mail to point out that all petitioners did not return back, which is evident from the passport and also submitted that preliminary inquiry should have been done.
6. Heard the learned counsel for the parties.
7. It is true that in the light of judgment passed by Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1, a preliminary inquiry in 5 W.P. No.14464/2023 matrimonial cases is desirable but the moot question for consideration is as to whether this Court can quash the FIR only on the ground that it was not preceded by the preliminary inquiry?
8. This Court in the case of Meera Yadav (supra) has held under:
"Whether, the preliminary enquiry is required or not ?
28. It is submitted by counsel for petitioner that Supreme Court in the case of Lalita Kumari v. Govt. of U.P., reported in (2014) 2 SCC 1 has held that the preliminary enquiry is desirable and since preliminary enquiry has not been done, therefore lodging of FIR is bad.
29. Considered the submissions made by counsel for petitioner.
30. The Supreme Court in the case of Lalita Kumari (supra) has held as under:-
"Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
[120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant 6 W.P. No.14464/2023 forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
7 W.P. No.14464/2023120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
31. Paragraph-120.4 of the judgment passed in Lalita Kumari (supra) caste a duty upon SHO to register an offence if the information discloses the cognizable offence. It has also been clarified that the scope of preliminary enquiry is not to verify the veracity and otherwise of the information received but the purpose is only to ascertain whether the information reveals any cognizable offence or not.
32. Now, the only question for consideration is as to whether the non holding of preliminary enquiry will vitiate the FIR or not ?
33. The Supreme Court in the case of Central Bureau of Investigation (CBI) and Anr. v. Thommandru Hannah Vijayalakshmi @ T. H. Vijayalakshmi and Anr. decided on 08.10.2021 in Criminal Appeal No.1045/2021 has held as under:-
"9 (iii) A Preliminary Enquiry is only conducted when the information received is not sufficient to register a Regular Case. However, when the 8 W.P. No.14464/2023 information available is adequate to register a Regular Case since it discloses the commission of a cognizable offence, no Preliminary Enquiry is necessary. This will depend on the facts and circumstances of each case, and the Preliminary Enquiry cannot be made mandatory for all cases of alleged corruption. This proposition finds support in the judgments of this Court in Lalita Kumari v. Govt. of UP and others (―Lalita Kumari) and The State of Telangana v. Managipet (―Managipet);
(iv) The FIR was registered on the basis of reliable source information collected during the investigation of another case18 in which the first respondent was one of the accused.
During the investigation of that case, CBI conducted searches at four places belonging to the first respondent during which documents were seized and she was also examined. On the basis of such information and documents, the FIR was registered in the present case. Hence, there was no need for a Preliminary Enquiry;
(v) There is also no need to conduct a Preliminary Enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets, and their income and expenditure during the check period, during the investigation. Hence, it was not necessary to provide this opportunity 9 W.P. No.14464/2023 before the registration of an FIR (through a Preliminary Enquiry) since there would have been a risk of tampering with or destruction of evidence by the accused persons;
(vi) The Investigating Officer has no duty to call for any explanation from the accused in relation to their assets before registering an FIR against them since doing so would further lengthen the proceeding. In any case, such an opportunity is available to the accused persons at the stage of trial. This principle emerges from the judgments of this Court in K. Veeraswami v. Union of India (―K. Veeraswamiǁ), Union of India and another v. W.N. Chadha, State of Maharashtra v. lshwar Piraji Kalpatri , Narendar G. Goel v. State of Maharashtra and Samaj Parivarthan Samudhaya v. State of Karnataka;
D Whether a Preliminary Inquiry is mandatory before registering an FIR D.1 Precedents of this Court
12. Before proceeding with our analysis of the issue, it is important to understand what previous judgements of this Court have stated on the issue of whether CBI is required to conduct a Preliminary Enquiry before the registration of an FIR, especially in cases of alleged corruption against public servants.
10 W.P. No.14464/202313. The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra), in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that person. Justice G K Mitter held that: ―
17...Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general...
(emphasis supplied)
14. The above decision was followed by another two Judge Bench in Nirmal Singh Kahlon (supra), where it was observed that in accordance with the CBI Manual, the CBI may 11 W.P. No.14464/2023 only be held to have established a prima facie case upon the completion of a Preliminary Enquiry. Justice S B Sinha held thus: ―
30. Lodging of a first information report by CBI is governed by a manual. It may hold a preliminary inquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have been established only on completion of a preliminary enquiry.
15. The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether ―a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973...or the police officer has the power to conduct a preliminary inquiry' in order to test the veracity of such information before registering the same‖. Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a 12 W.P. No.14464/2023 cognizable offence. Specifically with reference to the provisions of the CBI Manual, the decision noted: ―
89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of CBI.
However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code.
Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.
(emphasis supplied) However, the Court was also cognizant of the possible misuse of 13 W.P. No.14464/2023 the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated ―exceptions‖ to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The Constitution Bench held:
―115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time...
[...]
117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v.
State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants.
[...]
119. Therefore, in view of various counterclaims regarding registration or non-
registration, what is necessary is only that the information given to the police must disclose the 14 W.P. No.14464/2023 commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed.
But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to 15 W.P. No.14464/2023 prosecute the complainant for filing a false FIR.
(emphasis supplied) The judgment provides the following conclusions: ―
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
[...] 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.16 W.P. No.14464/2023
The category of cases in which preliminary inquiry may be made are as under:
[...]
(d) Corruption cases [...] The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(emphasis supplied) The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, ―corruption cases‖ fall in that category of cases where a Preliminary Enquiry ―may be made‖. The use of the expression ―may be made‖ goes to emphasize that holding a preliminary enquiry is not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that: (i) it is not a statute enacted by the legislature; and (ii) it is a compendium of administrative orders for the internal guidance of the CBI.
16. The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench of this Court in 17 W.P. No.14464/2023 Yashwant Sinha (supra) where the Court refused to grant the relief of registration of an FIR based on information submitted by the appellant-informant. In his concurring opinion, Justice K M Joseph described that a barrier to granting the relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be desirable before doing so. Justice Joseph observed:
―108. Para 120.6 [of Lalita Kumari] deals with the type of cases in which preliminary inquiry may be made.
Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted...
[...]
110. In para 117 of Lalita Kumari [Lalita Kumari v.
State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court referred to the decision in P. Sirajuddin v.
State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants.
18 W.P. No.14464/2023[...]
112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual...
[...]
114. The Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of 19 W.P. No.14464/2023 corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in para 120.7, is to be completed within seven days.
(emphasis supplied)
17. The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases. Justice Hemant Gupta held thus:
―28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a 20 W.P. No.14464/2023 police officer is doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in the complaint are credible...
29. The Court concluded that the registration of an FIR is mandatory under Section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation...
30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry.
21 W.P. No.14464/2023[...]
32...The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] .
33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence.
Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the 22 W.P. No.14464/2023 credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v.
Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] is not required to be 23 W.P. No.14464/2023 mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case.
There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.
(emphasis supplied)
18. In Charansingh (supra), the two Judge bench was confronted with a challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB Manual in Maharashtra and held that a statement provided by an individual in an ―open inquiry‖ in the nature of a Preliminary Enquiry would not be confessional in nature and hence, the individual cannot refuse to appear in such an inquiry on that basis. Justice M R Shah, writing for the two Judge bench consisting also of one of us (Justice D Y Chandrachud) held:
―11. However, whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known 24 W.P. No.14464/2023 sources of income, which can be said to be an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre-FIR stage is permissible or not and/or it is desirable or not, if any decision is required, the same is governed by the decision of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] . 11.1. While considering the larger question, whether police is duty-bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1:
(2014) 1 SCC (Cri) 524] has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of 25 W.P. No.14464/2023 FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case.
[...]
14. In the context of offences relating to corruption, in para 117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court also took note of the decision of this Court in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 26 W.P. No.14464/2023 SCC (Cri) 240] in which case this Court expressed the need for a preliminary enquiry before proceeding against public servants.
[...] 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income.
After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure.
Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is 27 W.P. No.14464/2023 disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.
15.2. Even as held by this Court in CBI v. Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police 28 W.P. No.14464/2023 officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in a catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and considering the observations by this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging the FIR, an enquiry is held and/or conducted after following the procedure as per Maharashtra State AntiCorruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-Corruption 29 W.P. No.14464/2023 Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-
registration of FIR stage.
(emphasis supplied)
19. Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting a Preliminary Enquiry.
20. This conclusion is also supported by the judgment of another Constitution Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the PC Act. It was argued that: (i) a public servant must be afforded an opportunity to explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this must then be included and explained by the Investigating Officer while filing the charge sheet; and (iii) the failure to do so would render the charge sheet invalid.
30 W.P. No.14464/2023Rejecting this submission, the Constitution Bench held that doing so would elevate the Investigating Officer to the role of an enquiry officer or a Judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant. In his opinion for himself and Justice Venkatachaliah, Justice K Jagannatha Shetty held thus:
―75...since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression ―for which he cannot satisfactorily account‖ used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The 31 W.P. No.14464/2023 Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the 32 W.P. No.14464/2023 income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet.
(emphasis supplied) Therefore, since an accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a Preliminary Enquiry mandatory."
34. Therefore, it is clear that non holding of preliminary enquiry will not vitiate the FIR.
Furthermore, this Court has already come to the conclusion that allegations made against the petitioner makes out a cognizable offence.
35. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out warranting quashment of FIR or warranting quashment of direction to lodge FIR.
36. Accordingly, the petition fails and is hereby dismissed.
37. Interim order dated 28.04.2022 is hereby vacated."
9. Thus, it is clear that non-holding of preliminary inquiry would not vitiate the FIR and it is for the investigating officer to get satisfied as to whether allegations made in the complaint make out a cognizable offence or not.
33 W.P. No.14464/202310. Under these circumstances, it is held that merely because the preliminary inquiry was not conducted, it would not vitiate the FIR in question.
Whether the suspect/accused has any right to participate in the investigation or not?
11. The Supreme Court in the case of Romila Thapar and Others Vs. Union of India and Others, by judgment dated 28th September, 2018 passed in Writ Petition (Criminal) No.260 of 2018 has held as under:
"20. After having given our anxious consideration to the rival submissions and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named accused have approached this Court and have asked for being transposed as writ petitioners, the following broad points may arise for our consideration:
(i) Should the investigating agency be changed at the behest of the named five accused?
(ii) If the answer to Point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL?
(iii) If the answer to Questions
(i) and/or (ii) above, is in the affirmative, have the petitioners made out a case for the relief of appointing Special Investigating Team or directing the court-
monitored investigation by an independent investigating agency?
(iv) Can the accused person be released merely on the basis of the perception of his next friend (writ 34 W.P. No.14464/2023 petitioners) that he is an innocent and law abiding person?
21. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat [Narmada Bai v. State of Gujarat, (2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] , in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus : (SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."
(emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt v. Union of India [Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1 : (2016) 1 SCC (Cri) 193 :
(2016) 1 SCC (L&S) 1] , the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus : (SCC p.
40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , Mayawati v. Union of 35 W.P. No.14464/2023 India [Mayawati v. Union of India, (2012) 8 SCC 106 : (2012) 3 SCC (Cri) 801] , Dinubhai Boghabhai Solanki v. State of Gujarat [Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384] , CBI v. Rajesh Gandhi [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) 88] , CCI v. SAIL [CCI v. SAIL, (2010) 10 SCC 744] and Janata Dal v. H.S. Chowdhary [Janata Dal v. H.S. Chowdhary, (1991) 3 SCC 756 :
1991 SCC (Cri) 933] ."
(emphasis supplied)
23. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India [E. Sivakumar v. Union of India, (2018) 7 SCC 365 : (2018) 3 SCC (Cri) 49] , while dealing with the appeal preferred by the "accused" challenging the order [J. Anbazhagan v. Union of India, 2018 SCC OnLine Mad 1231 : (2018) 3 CTC 449] of the High Court directing investigation by CBI, in para 10 observed : (SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment [J. Anbazhagan v. Union of India, 2018 SCC OnLine Mad 1231 : (2018) 3 CTC 449] . In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat [Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384] , wherein it has been held that in a 36 W.P. No.14464/2023 writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra [Narender G. Goel v. State of Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] , in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."
24. This Court in Divine Retreat Centre v. State of Kerala [Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9] , has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the 37 W.P. No.14464/2023 instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.
25. Be that as it may, it will be useful to advert to the exposition in State of W.B. v. Committee for Protection of Democratic Rights [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] . In para 70 of the said decision, the Constitution Bench observed thus : (SCC p. 602) "70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident 38 W.P. No.14464/2023 may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
26. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed for (mentioned in para 8 above)
-- regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A-16 to A-20) has been seriously disputed by the investigating agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor is it possible to enquire into whether the same is 39 W.P. No.14464/2023 genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. Admittedly, the named accused have already resorted to legal remedies before the jurisdictional court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the court for obtaining remand by the police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.
27. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court-monitored investigation. The first two modified reliefs claimed in the writ petition, if they were to be made by the accused themselves, the same would end up in being rejected. In the present case, the original writ petition was filed by the persons claiming to be the next friends of the accused concerned (A-16 to A-20). Amongst them, Sudha Bhardwaj (A-
19), Varvara Rao (A-16), Arun Ferreira (A-18) and Vernon Gonsalves (A-17) have filed signed statements praying that the reliefs claimed in the subject writ petition be treated as their writ petition.
That application deserves to be allowed as the accused themselves have chosen to approach this Court and also in the backdrop of the preliminary objection raised by the State that the 40 W.P. No.14464/2023 writ petitioners were completely strangers to the offence under investigation and the writ petition at their instance was not maintainable. We would, therefore, assume that the writ petition is now pursued by the accused themselves and once they have become petitioners themselves, the question of next friend pursuing the remedy to espouse their cause cannot be countenanced. The next friend can continue to espouse the cause of the affected accused as long as the accused concerned is not in a position or incapacitated to take recourse to legal remedy and not otherwise."
12. The Supreme Court in the case of Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others reported in (2014) 4 SCC 626 has held as under:
"50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , the High Court had quashed and set aside the order passed by the Special Judge in charge of CBI matters issuing the order rogatory, on the application of a named accused in the FIR, Mr W.N. Chadha. The High Court held that the order issuing letter rogatory was passed in breach of principles of natural justice.
In appeal, this Court held as follows: (SCC pp. 290-91 & 293, paras 89, 92 & 98) "89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused 41 W.P. No.14464/2023 which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.
* * *
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
* * *
98. If prior notice and an opportunity of hearing are to be given to an accused in 42 W.P. No.14464/2023 every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." These observations make it abundantly clear that it would not be necessary to give an opportunity of hearing to the proposed accused as a matter of course. The Court cautioned that if prior notice and an opportunity of hearing have to be given in every criminal case before taking any action against the accused person, it would frustrate the entire objective of an effective investigation. In the present case, the appellant was not even an accused at the time when the impugned order was passed by the High Court. Finger of suspicion had been pointed at the appellant by independent witnesses as well as by the grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) 88] , this Court again reiterated the law as follows: (SCC pp. 256-57, para 8) "8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. ... There is no provision in law under which, while granting 43 W.P. No.14464/2023 consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) CrPC, 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate." The aforesaid observations would clearly support the course adopted by the High Court in this matter. We have earlier noticed that the High Court had initially directed that the investigation be carried under the supervision of the Special Commissioner of Police, Crime Branch, of the rank of the Additional Director General of Police. It was only when the High Court was of the opinion that even further investigation was not impartial, it was transferred to CBI.
44 W.P. No.14464/202352. Again in Sri Bhagwan Samardha [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047] , this Court observed as follows: (SCC pp. 742- 43, paras 10-11) "10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation."
These observations also make it clear that there was no obligation for the High Court to either hear or to make the appellant a party to the proceedings before directing that the investigation be conducted by CBI.
45 W.P. No.14464/202353. We had earlier noticed that the High Court had come to the prima facie conclusion that the investigation conducted by the police was with the motive to give a clean chit to the appellant, in spite of the statements made by the independent witnesses as well as the allegations made by the father of the deceased. The legal position has been reiterated by this Court in Narender G. Goel [Narender G. Goel v. State of Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, paras 11-13) "11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed: (SCC p. 743, para
11) '11. ... There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.'
12. The accused can certainly avail himself of an opportunity to cross- examine and/or otherwise controvert the 46 W.P. No.14464/2023 authenticity, admissibility or legal significance of material evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code.
13. We are of the view that what is the evidentiary value can be tested during the trial. At this juncture it would not be proper to interfere in the matter."
13. The Supreme Court in the case of Narender G. Goel (supra) has held as under:
"11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed : (SCC p. 743, para 11) "11. ... There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
12. The accused can certainly avail himself of an opportunity to cross-examine and/or otherwise controvert the authenticity, admissibility or legal significance of material 47 W.P. No.14464/2023 evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code."
14. Thus, it is clear that the suspect/accused has no right of hearing at the stage of investigation. Furthermore, the investigation is still going on and it is stayed by virtue of the interim order.
15. It is well established principle of law that the High Court should not interfere with the investigation thereby killing an unborn baby. A legitimate prosecution should not be stifled in the mid way.
16. The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. (supra) has held as under:
"12.8. In Prakash P. Hinduja [Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 : 2003 SCC (Cri) 1314] , it is observed and held by this Court that the court would not interfere with the investigation or during the course of investigation which would mean from the time of 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. 12.9. In P. Chidambaram v. Directorate of Enforcement [P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC (Cri) 509] , this Court while considering the powers of the investigating agency to investigate the cognizable offence, has observed in paras 61 and 64 to 67 as under : (SCC pp. 54 & 56-57) "61. The investigation of a cognizable offence and the various 48 W.P. No.14464/2023 stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482CrPC, the Court can interfere and issue appropriate direction only when the Court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of the Code of Criminal Procedure. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of the Criminal Procedure Code.
***
64. Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation. In State of Bihar v. P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] , it was held that : (SCC p. 258, para 47) '47. The investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. ... Enough power is therefore given to the police officer in the area of investigatory process and granting him or her great latitude 49 W.P. No.14464/2023 to exercise his discretionary power to make a successful investigation....'
65.In Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261] , this Court held that : (SCC p. 55, para
7) '7. ... It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual....'
66. As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him 50 W.P. No.14464/2023 and the manner of interrogation of the accused.
67. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482CrPC, can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-
compliance of the provisions falling under Chapter XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the Court is considering the question of grant of regular bail or pre-arrest bail, it is not for the Court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses."
12.10. In the recent decision of this Court in Skoda Auto Volkswagen India (P) Ltd. v. State of U.P. [Skoda Auto Volkswagen India (P) Ltd. v. State of U.P., (2021) 5 SCC 51 W.P. No.14464/2023 795 : (2021) 3 SCC (Civ) 294 : (2021) 2 SCC (Cri) 709] , it is observed in paras 40 to 42 as under : (SCC pp. 805-806) "40. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203 : AIR 1945 PC 18] , the law is well settled that Courts would not thwart any investigation. 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.
41. As cautioned by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the 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 or in the complaint. In S.M. Datta v. State of Gujarat [S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201] this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule.
42. In S.M. Datta [S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC 52 W.P. No.14464/2023 (L&S) 1201] , this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."
13. From the aforesaid decisions of this Court, right from the decision of the Privy Council in Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203 : AIR 1945 PC 18] , the following principles of law emerge:
13.1. 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 cognizable offences. 13.2. Courts would not thwart any investigation into the cognizable offences. 13.3. However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on. 13.4. The power of quashing should be exercised sparingly with circumspection, in the "rarest of rare cases". (The rarest of rare cases standard in its application for quashing under Section 482CrPC is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court.) 13.5. 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. 13.6. Criminal proceedings ought not to be scuttled at the initial stage.53 W.P. No.14464/2023
13.7. Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule. 13.8. Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482CrPC.
13.9. The functions of the judiciary and the police are complementary, not overlapping. 13.10. 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.
13.11. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.
13.12. 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. During or after investigation, if the investigating officer finds 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. 13.13. The power under Section 482CrPC is very wide, but conferment of wide power 54 W.P. No.14464/2023 requires the Court to be cautious. It casts an onerous and more diligent duty on the Court. 13.14. 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 R.P. Kapur [R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21 : AIR 1960 SC 866] and Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], has the jurisdiction to quash the FIR/complaint.
13.15. When a prayer for quashing the FIR is made by the alleged accused, the Court when it exercises the power under Section 482CrPC, only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
17. It is next contended by counsel for petitioners that since all the petitioners had not return back from Australia therefore, the allegations that all the petitioners have misbehaved, maltreated and treated the respondent No.2 with cruelty after their return from Australia is bad. However, it was fairly conceded by counsel for petitioners that prior to going to Australia all were residing together in Kanpur. The marriage was performed on 05.12.2021 and she was ousted from her matrimonial house on 08.01.2023 i.e. within 1 and 1/2 years of her marriage. There are specific allegations of passing taunts, assaulting her and use of filthy language on account of non-fulfillment of dowry. There are specific allegations that her father-in-law namely; Tanweer had an evil eye on her and was involved in eve-teasing. The investigation is not complete.
55 W.P. No.14464/2023Even if all the petitioners did not return back from Australia still they cannot run away from the allegations of committing cruelty before departing for Australia. The maxim falsus in uno falsus in omnibus is not applicable in India. It would be too early to appreciate the evidence, which has been collected by the Police so far. Whether Mahila Thana, Bhopal has jurisdiction to investigate the offence.
18. So far as the territorial jurisdiction is concerned, it is suffice to mention here that compelling a married woman to live in her parental home on account of cruelty is a continuous offence of cruelty. The Supreme Court in the case of Rupali Devi v. State of U.P., reported in (2019) 5 SCC 384 has held as under:-
"14. "Cruelty" which is the crux of the offence under Section 498-A IPC is defined in Black's Law Dictionary to mean "the intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty"
appearing in Section 498-A of the Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatise the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that 56 W.P. No.14464/2023 had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place."
19. This Court in the case of Amar Singh vs. Smt. Vimla decided on 22.06.2021 in Criminal Revision No.2376/2020 (Gwalior Bench) has held that compelling a married woman to live in her parental home amounts to cruelty.
20. Accordingly, this Court is of considered opinion that in the light of specific allegations made by respondent No.2 against all petitioners, there is sufficient material available on record to investigate the matter.
21. As a consequence thereof, no case is made out.
22. Petition fails and is hereby dismissed.
23. Interim order dated 11.07.2023 is hereby vacated.
24. Respondent No.1 is directed to conclude the investigation as early as possible without any further delay.
(G.S. AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.07.23 17:01:21 +05'30'