Madhya Pradesh High Court
Sachin Dhangar vs Department Of Home on 22 February, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 22nd OF FEBRUARY, 2024
WRIT PETITION No. 15080 of 2022
BETWEEN:-
1. SACHIN DHANGAR S/O LATE SHRI KISHORI
LAL DHANGAR, AGED ABOUT 38 YEARS,
OCCUPATION: BRANCH MANAGER AT SBI
INDRIRA COLONY, B.P.N. TRADE CENTRE,
C.K.GREEN (MADHYA PRADESH)
2. STATE BANK OF INDIA THROUGH BRANCH
MANAGER SME POLOGROUND BRANCH, 36
POLOGROUND INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI YASHWARDHAN TIWARI, ADVOCATE)
AND
1. DEPARTMENT OF HOME THROUGH
SECRETARY 3RD FLOOR, VALLABH BHAWAN,
II GOVT. OF M.P. 4TH FLOOR, MANTRALAYA,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF POLICE, POLICE
HEAD QUARTERS, SWAMI DAYANAND
NAGAR, JAHANGIRABAD, CITY BHOPAL
(MADHYA PRADESH)
3. COMMISSIONER INDORE (MADHYA PRADESH)
4. DEPUTY COMMISSIONER OF POLICE ZONE-
III, INDORE (MADHYA PRADESH)
5. STATION HOUSE OFFICER P.S. BANGANGA,
INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 28-02-2024
17:31:40
2
6. DHARMENDRA PAL 417, A-3, MILAN HEIGHT,
BICHOLI MARDANA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VAIBHAV BHAGWAT, G.A. FOR STATE AND SHRI ABHIJEET
SINGH CHAUHAN, ADVOCATE FOR RESPONDENT NO.6 )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
Heard finally, with the consent of the parties.
2] This petition has been filed by the petitioners under Article 226 of the Constitution of India read with Section 482 of Cr.P.C, against the notice dated 20.06.2022, issued by the respondent No.5, SHO, Police Station Banganga, Indore under Sections 160 and 91 of Cr.P.C. asking the petitioner No.1, who was the Branch Manager of the petitioner No.2 State Bank of India directing him to produce certain documents.
3] In brief, the facts of the case are that the petitioner No.2 Bank had sanctioned a loan to one borrower, M/s. Lakra Builders. In the aforesaid loan transaction, respondent No.6 Dharmendra Pal stood as a guarantor of the said loan and his grievance is that despite making repeated requests to the petitioner No.2 Bank, he has not been relieved from his guarantee and no fresh guarantor has been introduced, despite the fact that the properties of the wife of the borrower, who also stood as guarantor, were released. Thus, a complaint was lodged by the respondent No.6 to the Police Station Banganga, Indore alleging foul played by the Bank and the Bank Officer, which led the SHO, Police Station Banganga to issue the impugned notice dated Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40 3 20.06.2022, under Sections 160 & 91 of Cr.P.C.
4] Counsel for the petitioners has submitted that the aforesaid notice being illegal, cannot be sustained in the eyes of law as even the FIR has not been lodged and the SHO of Police Station Banganga has issued the notice invoking Section 160 and 91 of Cr.P.C. It is submitted that the petitioners, who are accused in the complaint made by the respondent No.6 are being asked to give evidence or statement against themselves. Counsel has also relied upon the decision rendered by the Supreme Court in the case of State of Gujarat Vs. Shyamlal Mohanlal Choksi, a five Judges Bench judgement reported as AIR 1965 SC 1251 in which the in the majority judgement, the Supreme Court has dealt with Section 94 of Cr.P.C. of the 1898, which was pari materia to Section 91 of Cr.P.C. of 1973. Counsel has drawn the attention of this Court to para 30, 31 and 34. Counsel has also relied upon the decision rendered by the Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh reported as (2014) 2 SCC 1 which judgement has also been considered by the Delhi High Court in its decision in the case of Kulvinder Singh Kohli Vs. State of NCT of Delhi & Ors. passed in W.P. (CRL) 611/2022 dated 10.06.2022 paras 26, 28, 29 and 31 in which the Delhi High Court has also taken note of Section 160 of Cr.P.C. and various other decisions of the Supreme Court have also been relied upon. Counsel has also relied upon a decision of High Court of Chhattisgarh, Bilaspur in the case of Rajeshwar Sharma Vs. State of Chhattisgarh and Ors. passed in Writ Petition (Cr.) No.678 of 2020 dated 07.06.2021 paras 18 and 19. Thus, it is submitted that the impugned notice being contrary to law, is Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40 4 liable to be quashed.
5] Counsel for the State, on the other hand, has opposed the prayer. However, it is not denied that the FIR has not been lodged and the notice has been issued under Section 160 & 91 of Cr.P.C. asking the petitioners against whom the complaint has been made by the respondent No.6 to appear before the SHO and produce documents. Counsel has also relied upon the decision rendered by the Supreme Court in the case of Lalita Kumari (supra) in which the Supreme Court has observed that in the case of commercial offences and abnormal delay/laches in initiating criminal prosecution, a preliminary enquiry can be conducted.
6] Heard.
7] On a close scrutiny of the record, it is found that two separate
notices have been issued by the police. So far as the petitioner No.1 is concerned, the notice have been issued under Section 160 and 91 of Cr.P.C., whereas to the petitioner No.2, notice has been issued under Section 91 of Cr.P.C. only.
8] Having considered rival submissions, perusal of the documents filed on record, it is apparent that the impugned notice has been issued to the petitioner no.1 under Sections 160 and 91 of Cr.P.C., and the validity of such notice to an accused has been examined by the Supreme Court in the case of Shyamlal Mohanlal Choksi (supra), the relevant paras of the same read as under:-
"30. It seems to us that in view of this background the Legislature, if it were minded to make Section 94 applicable to an accused person, would have said so in specific words. It is true that the words of Section 94 are wide enough to include an accused person but it is well-recognised that in some cases a limitation may be put on the construction of the wide terms of a statute Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40 5 (vide Craies on Statute Law, p. 177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be, if possible, construed as not to alter the common law (vide Craies on Statute Law, p. 187).
31. There is one other consideration which is important. Article 20(3) has been construed by this Court in Kalu Oghad [(1962) 3 SCR 10] case to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Section 94, Criminal Procedure Code, permits the production of all documents including the above- mentioned class of documents. If Section 94 is construed to include an accused person, some unfortunate consequences follow. Suppose a police officer -- and here it is necessary to emphasize that the police officer has the same powers as a Court -- directs an accused to attend and produce or produce a document. According to the accused, he cannot be compelled to produce this document under Article 20(3) of the Constitution. What is he to do? If he refuses to produce it before the Police Officer, he would be faced with a prosecution under Section 175 Indian Penal Code, and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if Section 94 applies to an accused person. This becomes clearer if the language of Section 175 is compared with the language employed in Section 485 CrPC. Under the latter section a reasonable excuse for refusing to produce is a good defence. If he takes the document and objects to its production, there is no machinery provided for the police officer to hold a preliminary enquiry. The Police Officer could well say that on the terms of the section he was not bound to listen to the accused or his counsel. Even if he were minded to listen, would he take evidence and hear arguments to determine whether the production of the document is prohibited by Article 20(3). At any rate, his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we construe Section 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him.
xxxxxxxxxx
34. The argument pressed on us that the "person" referred to in the latter part of Section 94(1) is broad enough to include an accused person does not take into account the fact that the person in, the latter part must be identical with the person who can be directed to produce the thing or document, and if the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law, the generality of the word "the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40 6 person" is of no significance."
9] The Delhi High Court in the case of Kulvinder Singh Kohli (supra) has also considered the issuance of notice under Section 91 and 160 of Cr.P.C. before lodging the FIR, and after taking into account the various decisions of the Supreme Court, it has been observed as under:-
"26. From the discussion above, it can be deduced that summons/notices under Section 160 CrPC can be issued by a police officer who is making investigation under and in accordance with the provisions of the Cr.P.C. and to set into motion such an investigation there is a pre-requisite of registration of FIR. Without registration of FIR, an investigation cannot be said to have been initiated. Further, even for an enquiry to be held legal and valid, the police officer has to act in accordance with provisions of the CrPC and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate. Therefore, in the instant case, it cannot be said that either an investigation or an enquiry was validly or legally being carried out by the authority concerned/Respondent 3 even for the limited purposes of issuing a notice under Section 160CrPC. xxxxxxxxxxxxx
34. Keeping in view the above discussion, the provisions under the CrPC as well as the observations made by courts of the Country, it is found that firstly, the notice under Section 160CrPC was not issued at the right stage by Respondent 3, since, he could not have been said to be conducting investigation under the CrPC without the registration of FIR for the purpose of issuance of the notice under Section 160 and secondly, the summons/notices were issued without jurisdiction from the concerned authority in SAS Nagar, Mohali, Punjab to the petitioner residing beyond its own station as well as any adjoining station."
10] In view of the aforesaid, this Court has no hesitation to hold that the impugned notice dated 20.06.2022, issued to the petitioner No.1 by the SHO, Police Station Banganga, Indore is contrary to law and deserves to be quashed. Although, so far as the notice dated 07.05.2022 (Annexure P/2) issued to the petitioner No.2 Bank is concerned, this Court is of the considered opinion that issuance of Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40 7 Section 91 notice to the petitioner No.2 Bank was well within the provisions of Section 91 of Cr.P.C., and does not violate any of the rights of the petitioner No.2 Bank as it is not an accused. Accordingly, the petition stands partly allowed and the impugned notice dated 20.06.2022 is hereby quashed.
11] However, the petitioner No.2 Bank is directed to comply with the notice under Section 91 of Cr.P.C. as it is not an accused. 12] With the aforesaid, the petition stands disposed of to the aforesaid extent.
(SUBODH ABHYANKAR) JUDGE Bahar Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 28-02-2024 17:31:40