Allahabad High Court
Mohan Lal vs State Of U.P. And 2 Others on 19 February, 2018
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 3201 of 2018 Petitioner :- Mohan Lal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Udai Narain Khare,Gopal Khare Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha, J.
Hon'ble Krishna Pratap Singh,J.
Supplementary affidavit filed today by the learned counsel for the petitioner is taken on record.
Heard Shri Udai Narain Khare, learned counsel for the petitioner and Shri Ashish Pandey, learned Additional Government Advocate in opposition.
By means of this writ petition the petitioner has prayed for quashing of the First Information Report dated 21.12.2007 lodged at case crime No. 697 of 2017, under sections 420, 467, 468, 406, 506 IPC, Police Station Kotwali Mahoba, district Mahoba and also for a direction to the respondents-authorities not to disturb the peaceful life of the petitioner.
In short compass the facts of the case are that an application under section 156(3) of the Code of Criminal Procedure was moved by the first informant Varis Ali, son of Sadiq Ali, resident of Samad Nagar, Mahoba, Police Station Kotwali, district Mahoba in the Court of Chief Judicial Magistrate, Mahoba on 16.9.2017 to the effect that the first informant along with 10-12 persons have contacted the Branch Manager, Union Bank of India, Mahoba Branch for starting business. Shri Mohan Lal, the then Branch Manager, for the purpose of getting them to understand the process for sanction of loan, asked the informant to contact Shri Pramod Kumar alias Kakku Maharaj, Anupam Budholiya alias Sengar and Sharma Ji (Orai Wale). Thereafter the informant Varis Ali, Manoj Kumar Soni, Sharif Ahmad, Abdul Sarfaraz, Amit Kumar Anuragi, Khursheed Ansari, and Abdul Qadir made applications. On the directions of the then Branch Manager, accounts of all the aforesaid seven persons were got opened with the assistance of Pramod Kumar alias Kakku Maharaj, Anupam Budholiya alias Sengar and Sharma Ji after taking required documents, i.e. Adhar Card, Photo identity card issued by the Election Commission of India, PAN card and photograph and the relevant papers signed.
It is also alleged in the application that for completing the aforesaid process, the first informant and others were charged Rs. 25,000/- (rupees twenty five thousand ) each. The first informant and others were even not informed about the sanction of loan and the loan amount deposited in the loan account of the informant and others have been withdrawn by the then Branch Manager Shri Mohan Lal and his associates namely Pramod Kumar alias Kakku Maharaj, Anupam Bhudhauliya and Sharma Ji with common intention. It is also alleged in the application that following amount has been withdrawn from the accounts of the first informant and others:
Name Amount withdrawn 1. Varis Ali Rs. 1,50,000/- 2. Manoj Kumar Soni Rs. 1,90,000/- 3. Amit Kumar Anuragi Rs. 1,75,000/- 4. Sharif Ahmad Rs. 1,50,000/- 5. Abdul Sarfaraz Rs. 1,50,000/- 6. Khursheed Ahmad Rs. 1,92,000/- 7. Abdul Qadir Rs. 1.77.000/-
The first informant came to know about the fraud when a notice was sent by the bank. Thereafter Khursheed Ansari and Abdul Qadir went to Union Bank of India, Mahoba Branch and inquired as to when loan has been sanctioned, money deposited in their accounts and withdrawn therefrom. The Branch Manager and his associates also annexed fake/forged bill of Durga Enterprises. After Khursheed Ahmad Ansari and Abdul Qadir created ruckus in the bank, the then Branch Manager and his accomplice got the money deposited in the accounts of Khursheed Ahmad Ansari and Abdul Qadir and closed their accounts and also issued "No Dues Certificate.". It is also pertinent to mention it here that accounts of both Khursheed Ahmad and Abdul Qadir were opened on 21.7.2017 and closed on 29.7.2017, which is indicative of the fact that forgery was done. The first informant and others also visited the bank, but they came to know that Shri Mohan Lal, Branch Manager has been transferred to Kanpur and his accomplices have fled away to Orai. After a hectic search they were traced out and they assured that they will deposit the amount and close the accounts within 8-10 days, but they neither deposited the money nor given "No Dues Certificate." The first informant and others were also threatened of dire consequences in case the matter is report.
On the basis of the aforesaid application, the learned Magistrate directed the S.H.O. concerned to register the case and investigate the matter. Thereafter the case was registered.
Shri Udai Narain Khare, learned counsel for the petitioner contends that even the contents made in the FIR is taken as true, no offence is made out against the petitioner under sections 420, 467, 468, 406, 506 IPC. He further submits that the FIR has been lodged against the petitioner with a mala fide intention.
Learned counsel for the petitioner has also filed a supplementary affidavit annexing therewith three letters addressed to the Branch Manager, Union Bank of India, Mahoba purportedly written by Shareef Ahmad, Abdul Safraraz and Manoj Soni wherein it is mentioned that they are fully satisfied with the loan amount and the same may kindly be disbursed through draft.
On the other hand, Shri Ashish Pandey, learned Additional Government Advocate has submitted that allegations made in the FIR, prima facie, discloses commission of a cognizable offence and no interference is required under Article 226 of the Constitution of India. Shri Pandey further submits that the letters filed by the petitioners are the defence documents, which cannot be looked into by this Court.
There can be no dispute with the settled legal proposition that arrest is a part of investigation and it is not permissible to agitate that the Court can stay the arrest unless the Court is of the view that in the peculiar facts of a particular case, it is necessary to interfere with the investigation. The powers of investigation fall within the exclusive domain of the police, and at this stage courts cannot intervene unless the police acts wholly without jurisdiction by seeking to investigate an non-cognizable offence without the permission of a Magistrate, or where there may be some other statutory restriction on investigation. It is only after submission of the charge sheet, if the FIR and investigation do not disclose commission of a cognizable offence, or according to other well settled principles delineated by the apex Court and this Court in various decisions, can the High Court grant some appropriate relief.
The contention of the learned counsel for the petitioner that even if the allegations made in the FIR are taken as true, no case is made out against the petitioner is only to be noted and rejected. The petitioner is a Branch Manager and the first informant and others are very poor persons and a very serious allegations have been made against the petitioner that firstly he got the account opened, sanction and loan and thereafter got the money withdrawn. In the FIR the details of the account numbers and money withdrawn by the petitioner have also been given.
India is a developing country facing many challenges, corruption is one of them, which is detrimental to the whole society. Owing to the fallible democratic system and lack of stringent punishment mechanism for the culprits, it thrived in all the department, resultantly tax payers money which is for the welfare of the nation are being siphoned off by these culprits.
Albert Einstein quite rightly said "the world not be destroyed by those who do evil, but by those who watch them without doing anything."
The Corruption is worse than prostitution. The latter might endanger the morals of an individual, the farmer invariably endanger the morals of the entire country. (Karl Kraus).
Now it is a high time to check corruption as the corruption has become rampant and in case the same is not checked, the whole society shall come to a standstill.
In State of Haryana Vs. Bhajan Lal, 1992 (51) SCC 335, the Apex Court laid down certain broad tests to exercise the inherent power or extraordinary power of the High court. The Court held as under:
"the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution.
The Apex Court further laid down the guidelines for exercise the inherent powers as under:
1. Where the allegations made in the First Information Report 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.
2. Where the allegations in the first Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out as case against the accused,
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by as police officer without an order of a Magistrate ass contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision of the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide 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.
Powers of the police to effect an arrest has been clarified by the Apex Court in M.C. Abraham and another Vs. State of Maharashtra and others, 2003(2) SCC 649 and the Court held as under:
"In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.
In Adri Dharan Das Vs. State of West Bengal, AIR, 2005 SC 1057, the necessity of arrest for various aspect of investigation have been clarified by the Apex Court in the following words:
"Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."
In Emperor Vs. Khwaja Nazir Ahmad, AIR 1945 PC 18, the Privy Council considered the issue while dealing with the statutory rights of the police under sections 154 and 156 of the Code of Criminal Procedure for investigation of a cognizable offence. The Privy Council made the following observations:
"So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry...it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,...the Court's functions begin when a charge is preferred before it and not until then."
While dealing with the powers of investigation by a police officer under the Code of Criminal Procedure, the Supreme Court in State of Bihar and another Vs. J.A.C. Saldanna and others, 1980 AIR 326 held as under:
There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end."
In State of U.P. Vs. O.P. Sharma, 1996 SCALE (2) 356, Apex Court has held that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under section 482 of the Code or under Article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course.
So far as the next argument of the learned counsel for the petitioner that some of the persons to whom loan was sanctioned had written letters that they are satisfied with the loan and the same may be disbursed to them by draft, is concerned, the same being defence documents cannot be considered at this stage. Moreover, it is a procured document and there was no necessity for the persons to whom loan was granted to write to the Branch Manager that they are satisfied with the loan and the amount may be disbursed to them through bank draft.
In Savita Vs. State of Rajasthan (2005)12 SCC 338, the Apex Court has held that at the stage when investigation had not even started and charge sheet had not been submitted the High Court could not take into consideration extraneous material given by the party concerned for reaching the conclusion that no offence was disclosed. This in fact was too premature a stage for the High Court to give such a finding when even the investigation had not started and the investigating agency had no occasion to find whether there was material to file a charge sheet or not.
In view of the aforesaid settled position of law coupled with the fact that the FIR, prima facie, discloses cognizable offence, we are not inclined to quash the FIR or to stay the arrest of the petitioner.
The writ petition is devoid of merits, it is accordingly dismissed.
(Krishna Pratap Singh, J ) (Ramesh Sinha, J.) Order Date :- 19.2.2018 A.K. Verma