Chattisgarh High Court
Saraswati Bai vs State Of Chhattisgarh on 10 March, 2022
1
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 184 of 2022
Saraswati Bai D/o Shri Dhanraj Agrawal Aged About 63 Years W/o
Shri Laxmi Narayan Agrawal, R/o Village Barekel Khurd, Pithora,
Tehsil Pithora, District Mahasamund Chhattisgarh. --- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department of Home Affairs
(Police), Mahanadi Bhawan, Naya Raipur, District Raipur
Chhattisgarh.
2. Additional Superintendent of Police Mahasamund, District
Mahasamund Chhattisgarh.
3. Station House Officer Police Station Mahasamund, District
Mahasamund Chhattisgarh.
4. Station House Officer Police Station Patewa, District Mahasamund
Chhattisgarh.
5. Ram Awatar Agrawal S/o Shri Suwalal Agrawal Aged About 57 Years
R/o Lakhe Nagar Dhaal, Mahadev Ghat Road, Raipur, Tehsil And
District Raipur Chhattisgarh. Presently R/o Samta Colony, Infront of
Union Bank, Raipur, Tehsil and District Raipur Chhattisgarh.
6. Rashmi Agrawal S/o Shri Ram Awatar Agrawal Aged About 47 Years
R/o Lakhe Nagar Dhaal, Mahadev Ghat Road, Raipur, Tehsil And
District Raipur Chhattisgarh. Presently R/o Samta Colony, In front of
Union Bank, Raipur, Tehsil and District Raipur Chhattisgarh.
7. Superintendent of Police Mahasamund, District Mahasamund
Chhattisgarh. --- Respondents
For the Petitioner : Mr. Surfaraj Khan, Advocate. For the Respondent : Mrs. Hamida Siddiqui, Dy.A.G. Hon'ble Shri Justice Goutam Bhaduri Order on Board 10 .03.2022
1. Learned State Counsel prays for time to file additional reply. Incidentally, Vinod Minj, the Police Officer who has sworn the affidavit in support of reply is present in the Court. Since he was assisting the Court and filed affidavit, a specific query was made that whether he has signed the affidavit after 2 understanding the issue. He answer it in affirmative.
2. The challenge in this petition is to the notice dated 01.02.2022 24 whereby the summons have been issued by the Addl. Superintendent of Police Mahasamund to the petitioner to appear on 03.02.2022 at Police Office Mahasamund at 11.30 a.m., The notice is preceded by an earlier one dated 24.1.2022.
3. learned counsel for the petitioner submits that on a complaint made against the petitioners and others, the Police after investigation filed a report under section 155 of CrPC holding it a non-cognizable offence. Thereafter, the instant notice has been issued. He would submit that without there being any offence registered, the enquiry of like nature cannot be carried out. He placed reliance on an order passed by this Court in WP(Cr.) No. 678 of 2020 (Rajeshwar Sharma Vs. State of Chhattisgarh) decided on 07.06.2021. Therefore he would submit that it amounts to arm-twisting and consequently the respondents be restrained to call the petitioner pursuant to the summons of like nature.
4. On earlier occasion when the case came up for hearing, the substantial reason and ground on which the notices were issued were asked from the State. Reply has been filed on behalf of the State and learned State Counsel opposes the arguments of the petitioner.
5. In the reply filed by the State a specific stand has been taken that the notices have been issued in exercise of powers u/s 91 of the CrPC. Incidentally, the SDO(P) Pithora Vinod Minj who has sworn the affidavit in support of reply also affirms 3 that this has been drafted as per his instructions. This Court in Rajeshwar Sharma Vs State of Chhattisgarh (Supra) has made it clear that the notice of like nature by taking shelter of Section 91 CrPC cannot be issued. At para 18 & 19 this Court held as under:
"18. Section 91 of the CrPC clearly mandates that it is applicable only in case of investigation, inquiry, trial or other proceeding under the Code. The definition of "inquiry" under Section 2(g) of the CrPC does not include preliminary inquiry. By no stretch of imagination, preliminary inquiry before registering FIR would come within the meaning of "proceeding" under the CrPC, as it is only a sort of verification for the limited purpose of ascertaining whether a cognizable offence has been committed as inquiry within the meaning of Section 2(g) must be conducted under this Code by Magistrate or Court, whereas preliminary inquiry is to be conducted by Police Officer, otherwise it could have been specifically provided in the CrPC. In my considered opinion, Section 91 of the CrPC has to be construed strictly in order to make it applicable, as the Legislature has confined its applicability to investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure, 1973. Preliminary inquiry, if any, before registration of FIR would not fall within the meaning of other proceeding under section 91 of CrPC. The Legislature has deliberately and consciously applied it and made it applicable to certain specific proceedings specified in Section 91 of the CrPC, such as inquiry, investigation, trial and other proceeding under the Code. Thus, Section 91 of the CrPC cannot be stretched and made applicable to preliminary inqury that is prior to registration of FIR as recognized by the Supreme Court in Lalita Kumari Vs. Govt. of U.P. (2014) 2 SCC 1.
19. Therefore, in the considered opinion of this Court, since there is neither any proceeding nor any trial or any other proceeding pending in the Court, issuance of notice to the petitioner vide Annexure P-1 is without jurisdiction and without authority of law.4
Section 91 of the CrPC is admittedly not applicable to the accused as held by the Supreme Court in State of Gujarat Versus Shyamlal Mohanlal Choksi's AIR 1965 SC 1251 and further followed by the Supreme Court in the matter of Central Bank of India v. State of Kerala 2010 AIR SCW 2436 . But the question that since no offence has been registered against the petitioner and the petitioner is only a prospective accused, whether Section 91 would be applicable or not is purely academic, has to be answered in appropriate proceeding, as in this case it has already been held that Section 91 of CrPC is not attracted to the facts of the present case."
6. A perusal of the document filed with the petition shows that a proceeding u/s 155 CrPC was drawn wherein no cognizable offence was reported. However, again thereafter notices are issued to the petitioner from the office of Additional Superintendent of Police to appear in person. The reply of the State since falls back on the ground that the notices have been issued u/s 91 CRPC, the clear mandate exists about the law that the notices of like nature cannot be issued. Accordingly, the notices so issued are not appreciated rather it makes the Court to draw an inference.
7. Under the circumstances, the notices (Annexure P-1) dated 01.02.2022 & 24.1.2022 whereby the petitioner was asked to appear is hereby quashed. Accordingly, the petition is allowed.
Sd/-
GOUTAM BHADURI JUDGE Rao