Madhya Pradesh High Court
Ziaul Haque vs Union Of India on 27 March, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav
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WP-17923-2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE HON'BLE SHRI JUSTICE SANJAY YADAV
Writ Petition No.17923/2016
Ziaul Haque
versus
Union of India and others
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Shri Ahadullah Usmani, learned counsel for petitioner.
Shri Ravish Agrawal, learned Advocate General with Shri
Ajay Pratap Singh, learned Government Advocate for the
respondents No.3 to 7 and 9 to 10..
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ORDER
(27.3.2017) On 16.1.2017, on respondents raising objection qua relief sought vide paragraph 7.I(i) to (v); whereby, petitioner has sought the direction for handing over the investigation to Central Bureau of Investigation in respect of the offence registered vide First Information Report which find mention in these paragraphs, that the same is hit by principle of res judicata being decided by a Division Bench in a Public Interest Litigation : Writ Petition No.17302/2016 (PIL). And, the judgment being in rem the petitioner under the garb of raising individual grievance, cannot rake up the issue again on the :: 2 ::
WP-17923-2016 ground that the petitioner was not a party in the said writ petition. The matter was directed to be taken up at the later date, as learned counsel for the petitioner was not ready at the relevant time.
2. In furtherance thereto, the matter is on Board for hearing on the issue adverted to supra. Though there are certain interlocutory applications pending, consideration whereof are deferred.
3. Incident as borne out from the record is reportedly of 25.9.2016 at Baihar, Police Station Baihar District Balaghat, whereon the complaint against respondent No.8 of communalizing the locality by spreading message against particular community was intimated by the Inspector to Superintendent of Police, Balaghat. An FIR for the offence under Section 153A and 295A of the Indian Penal Code was registered and during arrest of respondent No.8, said to be belonging to an organization having close nexus with the Ruling Party, incident took place; whereon, respondent No.8 alleging of being manhandled lodged a complaint on 26.9.2016 which led to registration of FIR against the petitioner and other police personnel forming subject matter :: 3 ::
WP-17923-2016 of FIR being No.201/2016, 202/2016, 203/2016 and 204/2016 for offences punishable under Sections 392, 307, 452, 323, 506, 294, 341, 427 and 147 of IPC. The registration of these offences against police personnel led one public spirited person file a Public Interest Litigation : WP-17302-2016 (PIL) for direction to hand over the entire investigation to the CBI to ensure free and fair investigation and to monitor the investigation.
4. The Division Bench vide order-dated 3.11.2016 passed in WP-17302-2016 (PIL) declined to grant the relief after taking into consideration the rival contentions. It was held : -
10. The principle for referring and handing over investigation of a criminal case to an independent agency like the Central Bureau of Investigation has been considered time and again by the Hon'ble Supreme Court in various cases as are detailed herein above, particularly in the case of Committee for protection of Democratic Rights (supra) and all these principles were recently considered by the Supreme Court in the case of Pooja Pal (supra). In the aforesaid case after considering all the judgments on the question from para 50 onwards, the law has been summarized by the Hon'ble Supreme Court by holding that while exercising the extraordinary jurisdiction a Constitutional Courts under Articles 32 and 226 of the Constitution of India in the :: 4 ::
WP-17923-2016 matter of issuing directions to CBI to conduct investigation must exercise jurisdiction with great caution, as has been underlined in the case of Committee for Protection of Democratic Rights (supra). The Hon'ble Supreme Court has held that although no inflexible guidelines can be laid down in this regard but it is emphasized that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police or any person of authority. It has been laid down by the Supreme Court that the power can be exercised in exceptional situations where it becomes necessary to provide credibility and instil confidence into the investigation or where the incident may have national and international ramifications or it is required for doing complete justice and for enforcing the fundamental rights. In the case of Committee for Protection of Democratic Rights (supra), the principles have been laid down from para 60 onwards. It is held that the power, extraordinary in nature, available under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations.
It is also observed that if such a power is exercised in each and every case, the CBI would be flooded with a large number of cases and with it limited resources, may find it difficult to properly investigate even serious cases . If the aforesaid principle laid down by the Supreme Court is scrutinized in the backdrop of the material available on record in the present case, we find that except for submitting and contending in the :: 5 ::
WP-17923-2016 writ petition that certain police persons are being prosecuted at the instance of politically powerful persons, no cogent evidence or material is adduced as to why the investigation now undertaken by the Special Task Force is not proper, how and in what manner there is interference into the investigation by the STF and no exonerating circumstances are pointed out except for vague allegations are made out to say that moral of the police force in the State of M.P. would be adversely effected, if the investigation is not transferred. Having bestowed our consideration to the facts available on record, we find that the ingredients necessary for transfer of an investigation to Central Bureau of Investigation and the principles laid down by the Supreme Court in the catena of judgments to do so are not fulfilled or available in the present case and therefore, there being no exonerating circumstances or extraordinary situation warranting transfer of investigation, we are not inclined to interfere into the matter.
5. The petitioner who is an accused in the FIR No.202/2016 has filed this petition seeking the self same relief as was sought in WP-17302-2016 (PIL) and quashment of FIR No.202/2016.
6. Opposing the relief sought vide prayer clause 7.I(i) to
(v), it is contended by learned Advocate General that the order passed in WP-17302-2016 (PIL) being in the nature of rem, :: 6 ::
WP-17923-2016 the petition for the said relief by the petitioner, who though not a party in the said writ petition, is not tenable being barred by the principle of res judicata. Reliance is placed on the decision in Forward Construction Co. vs Prabhat Mandal (1986) 1 SCC 100.
7. Learned counsel for the petitioner while countering the submissions made by learned Advocate General has to submit that the Public Interest Litigation was not bona fide and the petitioner being not a party to the same, the decision therein not binding nor the same operate as res judicata. Reliance is placed on the decisions in Bansilal Farms vs Umarani Bose (1997) 9 SCC 191, State of Karnataka vs All India.
Manufactureres Organisation (2006) 4 SCC 683, State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571, Avishek Goenka vs Union of India (2012) 8 SCC 441, Pooja Pal vs Union of India (2016) 3 SCC 135 and Dharam Pal vs State of Haryana (2016) 4 SCC 160 to bring home the submissions.
8. Considered the rival submissions.
9. There is no dispute regarding the identity of relief sought vide paragraph 7.I(i) to (v) in present writ petition and :: 7 ::
WP-17923-2016 the relief sought in WP-17302-2016 (PIL) i.e. direction to hand over the entire investigation to the CBI.
10. There is authoritative pronouncement of law by the Supreme Court the circumstances in which the investigation could be directed to be handed over to CBI in State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal (supra) wherein it is observed : -
70. Before parting with the case, we deem it necessary to emphasis 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. In so far as the question of issuing a direction to the 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 extra-ordinary 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 may have national and international ramifications or where such an order :: 8 ::
WP-17923-2016 may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the 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.
11. As noted supra that the Division Bench taking into consideration all the factual aspect found that except that some police personnel are being prosecuted allegedly at the instance of politically powerful persons, no cogent evidence or material was shown as to why the investigation undertaken by the Special Task Force was not proper. The Division Bench found the allegation on the basis whereof, the relief for handing over the investigation was found to be vague.
12. The question whether the same will operate as res judicata.
13. In Forward Construction Co. vs Prabhat Mandal (supra), it has been held : -
21. The second reason given by the High Court however, holds good. Explanation VI to S.11 provides :
"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating."
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WP-17923-2016 But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new s.91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that Section 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bonafide litigation in respect of a right which is common and is agitated in common with others.
14. The proposition that the decision on earlier occasion has to be in a bona fide litigation in respect of a right which is common and is agitated in common with others, has been reiterated in State of Karnataka vs All India Manufacturers Organisation (supra), wherein it is held :
35. As a matter of fact, in a Public Interest Litigation, the petitioner is not agitating his individual rights but represents the public at large.
As long as the litigation is bona fide, a judgment in a previous Public Interest Litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue, which had been raised/should have been raised on an earlier occasion by way of a Public Interest Litigation. It cannot be doubted that the petitioner in :: 10 ::
WP-17923-2016 Somashekar Reddy (supra) was acting bona fide. Further, we may note that, as a retired Chief Engineer, Somashekar Reddy had the special technical expertise to impugn the Project on the grounds that he did and so, he cannot be dismissed as a busybody. Thus, we are satisfied in principle that Somashekar Reddy (supra), as a Public Interest Litigation, could bar the present litigation.
15. The principle that the judgment in a public interest litigation operates in rem is reiterated in Avishek Goenka (2) (supra) wherein their Lordships were pleased to observe that "it was neither expected of the Court nor is it the requirement of law that the Court should have issued notice to every shopkeeper selling the films, every distributor distributing the films and every manufacturer manufacturing the films.
16. Thus, a judgment in a bona fide public interest litigation operates in rem. In the case at hand, the petitioner fails to establish that WP-17302-2016 (PIL) was not a bona fide public interest litigation. Thus, the decision therein that the investigation in respect of the offence registered against the police personnel cannot be handed over to the CBI operates as res judicata.
17. In view whereof, the preliminary objections raised on behalf of the State as to relief clause 7.I(i) to (v) are upheld.
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WP-17923-2016 The petition stands dismissed as regard to the reliefs at Sl.
No.7.I(i) to (v).
18. Now coming to the relief sought at Clause 7.II for quashing of FIR No.202/2016 and the proceedings incidental to it registered at Police Station Baihar District Balaghat against the petitioner for the offences punishable under Sections 294, 323, 506, 147, 392, 307 and 452 of the Indian Penal Code. Contention on behalf of petitioner is that the FIR against the petitioner is in the nature of counter by respondent No.8. It is urged that as the petitioner after receiving the written complaint was discharging the statutory duty cast vide Section 154 of the Code of Criminal Procedure, 1973. It is urged that since the offence registered against respondent No.8 being under Section 153A and 295A IPC which being cognizable and non-bailable, it is in further discharge of their duty the police personnel had arrested respondent No.8 who having fled from the custody before being nabbed sustained injuries. MLC report (Annexure P/10) has been relied upon to substantiate the contention that the minor injuries sustained by respondent No.8 was of his own doing. Relying further on FIR No.203/2016 dated 26.9.2016 (Annexure P/11) filed by Swami Prasad Asati in whose house :: 12 ::
WP-17923-2016 respondent No.8 had taken shelter before being rearrested, it is contended that name of petitioner does not find in the FIR which was lodged by an eyewitness, the impugned FIR being No.202/2016 is based on cooked up story to falsely implicate the petitioner.
19. These submissions are duly considered and the documents brought on record are carefully perused.
20. For quashing of an FIR, certain parameters must be meted out as observed in M. Narayandas vs State of Karnataka (2003) 11 SCC 251, wherein it has been held :-
5. Before dealing with the High Court judgment, which has been impugned, it is first necessary to set out well settled law. The law has been very succinctly set out in the case of State of Haryana v.
Bhajan Lal reported in (1992) Supp (1) SCC 335. In this case the High Court had quashed an FIR. While setting aside the High Court judgment this Court held as follows :
"31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer can not embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered :: 13 ::
WP-17923-2016 under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub- section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information"
without qualifying the same as in Section 41(1)(a) or
(g) of the Code wherein the expressions, "reasonable complaint" and "credible information"
are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of :: 14 ::
WP-17923-2016 Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
(Emphasis supplied) x x x
40. The core of the above sections namely 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate, that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or :: 15 ::
WP-17923-2016 impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.
(Emphasis supplied.) x x x
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 FIR 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 :: 16 ::
WP-17923-2016 of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as 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 of 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 in 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 mala fide 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
It must also be mentioned that it is settled law that the power to quash must be exercised very sparingly and with circumspection. It must be exercised in the rarest of rare cases. It is also settled law that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or :: 17 ::
WP-17923-2016 otherwise of the allegations made in the FIR. The Court also cannot inquire whether the allegations in the complaint are likely to be established or not.
(Emphasis added)
21. The given facts of the present case, when tested on the anvil of decision in State of Haryana v. Bhajan Lal (1992) Supp (1) SCC 335 and reiterated in M. Narayandas (supra), this Court is not convinced with the contention raised on behalf of petitioner that he has been falsely implicated in respect of the offence registered against him under Sections 294, 323, 506, 147, 392, 307 and 452 of the Indian Penal Code vide FIR No.202/2016, as would warrant an indulgence.
22. Consequently, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE vinod