Jharkhand High Court
Hemant Goyal vs The State Of Jharkhand on 28 September, 2021
Equivalent citations: AIRONLINE 2021 JHA 1611
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 W.P. (Cr.) No. 279 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 279 of 2021
1. Hemant Goyal, aged about 36 years, son of Sri Anil Goyal, resident of
Goyal House, 4, Salkia School Road, P.O. Howrah, P.S. Golabari, Dist.
Howrah, West Bengal-711101
2. Anil Kumar Goyal @ Anil Kumar, aged about 60 years, son of Late
Narsingh Das Goyal, resident of Goyal House, 4 Salkia School Road,
P.O. Howrah, P.S. Golabari, Dist.- Howrah, West Bengal-711101
... Petitioners
-Versus-
1. The State of Jharkhand
2. Prakash Kumar Agarwal, S/o Late Birdhi Chand Agarwal, R/o Ratanjee
Road, P.O. & P.S. Dhansar, Disrict- Dhanbad, Jharkhand
... Respondents
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PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Indrajit Sinha, Advocate
Mr. Nitin Kumar Pasari, Advocate
For the State : Mr. Manoj Kumar, G.A.-III
For Respondent No.2 : Mr. R.S. Mazumdar, Sr. Advocate
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C.A.V. on 24.09.2021 Pronounced on 28.09.2021
Heard Mr. Indrajit Sinha assisted by Mr. Nitin Kumar Pasari, learned counsel for the petitioners, Mr. Manoj Kumar, learned counsel for the State and Mr. R.S. Mazumdar, learned Senior counsel for respondent no.2.
2. This criminal writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard on merit.
3. Learned counsel for the petitioners submitted that he has already removed the defects.
4. I.A. No.5393 of 2021 has been filed for immediate release of the petitioners from the judicial custody.
2 W.P. (Cr.) No. 279 of 2021
5. The arguments on the main petition as well as the said I.A. have been heard simultaneously.
6. This criminal writ petition under Article 226 of the Constitution of India has been filed for quashing the entire proceedings in connection with Dhansar P.S. Case No.155 of 2021, registered under Sections 406, 420, 120-B, 467, 468, 471, 504, 506 and 34 of the Indian Penal Code, which is pending in the court of Ms. Moumita Guin, learned Judicial Magistrate, 1st Class, Dhanbad. The prayer is also made to call the records of the case, specially the order dated 10.09.2021 and on receipt quash the order of remand dated 10.09.2021 on the ground that the certified copy was not made available to the petitioners since arrest of the petitioners was itself illegal and without mandatory observance of Section 41-A of the Code of Criminal Procedure and without following the law laid down by the Hon'ble Apex Court in the case of Arnesh Kumar v. State of Bihar.
7. The F.I.R. was lodged stating therein that in the month of January 2021, accused petitioner nos. 1 and 2 representing themselves to be the Managing Director and Director of Narsingh Ispat Udyog Private Limited respectively have approached the informant-respondent no.2 stating that they are in business of selling imported coking coal (peaks down coking coal). Further, they requested to purchase the same and to issue the purchase order and it was said by the petitioners to deposit 20% amount of the 25000 ton coal. From the said representation made by the petitioners, respondent no.2 issued the purchase order and on request made by the petitioners for advance payment of 20% and they have taken amount to the tune of Rs.4.63 Crores as an advance from the informant. There is also allegation of supply of inferior quality of coal. The allegations of threatening and abuse are also made in the F.I.R. against the 3 W.P. (Cr.) No. 279 of 2021 petitioners.
8. Mr. Indrajit Sinha, learned counsel appearing for the petitioners submitted that the F.I.R. was lodged on 19.08.2021. He further submitted that petitioner nos. 1 is the Managing Director and petitioner no.2 is the Director of the Company, who is engaged in the business of Pig Iron having its registered office at Diamond Heritage, 16 Strand Road Fairley Place, B.B.D. Bag, 15th Floor, Room No.-1512, Kolkata, West Bengal. He also submitted that the petitioners and the informant-respondent no.2 are having business transactions since decades and till the date of lodging of the F.I.R., approximately a total turnover of Rs.200/- Crores have been undertaken (Purchase & Sales). He further submitted that the business modus operandi was such that the Company either in its own name or in the name of other subsidiary concern (Narsingh Ispat Udyog Ltd.) purchased coal and supplied the coal to the Coke Oven Plant of respondent no.2 at a pre-fixed rate and in turn the said coal was to be converted into coke and the coke so manufactured was to be supplied in toto to the Company under an invoice at the pre-fixed rate and the difference amount of coal supplied and coke purchased shall be paid on ad-hoc basis. He also submitted that this was happened without any dispute till July 2021, however in the second week of August 2021 the informant started acting indifferently. He further submitted that since the amount was not being paid, the company of the petitioners demanded a payment of Rs.4 Crores and the complainant lodged a complaint and on the same day F.I.R. was lodged on 19.08.2021. He also submitted that in order to avoid payment of the amount as claimed by the petitioner-company for which statutory documents viz. invoices, E-way bills, transport related documents, transport payment receipts, GST returns are there and the complainant has preferred 4 W.P. (Cr.) No. 279 of 2021 the criminal proceeding. He further submitted that the agreement was entered between the petitioners and the informant on 30.01.2021 and on 06.08.2021 last rack of coal was sent. He also submitted that the F.I.R. was lodged on 19.08.2021 and on 01.09.2021, the I.O. prayed for issuance of warrant of arrest against the petitioners and the petitioners were arrested on 09.09.2021 and remanded by the concerned court on 10.09.2021. He further submitted that on looking to entire F.I.R., ingredients of Sections 406, 420, 120-B, 467, 468, 471, 504, 506 and 34 of the Indian Penal Code are not made out. There are vague and false allegations against the petitioners. According to him, even if all the allegations made in the complaint are presumed to be true at their face value, there is no positive case of criminal act much less breach of contract. The basic ingredients of Section 406 of the Indian Penal Code are absent. He also submitted that to hold a person guilty of cheating, as defined in Section 415 I.P.C., it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do something which he would not otherwise do. He further submitted that in a dispute of commercial transaction, which is civil in nature, with malafide intention criminal proceeding has been initiated against the petitioners. On the point of dishonest intention, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Sushil Sethi and another v. State of Arunachal Pradesh and others, reported in (2020) 3 SCC 240.
9. Paragraphs 2, 2.1, 6, 7, 8 and 8.1 of the said judgment are quoted herein below:
"2. That Appellant 1 is the Managing Director of M/s SPML Infra Limited, previously known as M/s Subhas Project Marketing Limited, and Appellant 2 is the Director of the said firm M/s SPML Infra Limited. M/s SPML Infra Limited is a public limited company 5 W.P. (Cr.) No. 279 of 2021 incorporated under the Companies Act, 1956. A contract was entered into between M/s SPML Infra Limited and the Government of Arunachal Pradesh on 18-3-1993 for construction, supply and commissioning of the Nurang Hydel Power Project including three power generating units for a consideration of Rs 24.96 crores approximately. As per Clause 2(c) of the contract, the defect liability period for the works was to be for a period of 18 months. Project was commissioned in the month of July 1996. That the defect liability period for the works of M/s SPML Infra Limited expired in the month of January 1998. That thereafter the project became operational and started generating electricity and according to the appellants till 20-9-1998 the project had generated 90 lakhs KW units. According to the appellants even the said project is also in operation today. There were some disputes with respect to the payment of maintenance by the respondents. The appellants issued notice to the respondents to take over the project before 31-3-2000 on account of non-payment of maintenance, vide notice dated 9-3-2000. 2.1. That thereafter the respondents--original complainant lodged the complaint against the appellants and others being Jang PS Case No. 05/2000 for the offence under Section 420 IPC alleging inter alia that the appellants provided inferior quality materials in contravention with the provisions of the contract which stipulated specific percentages of nickel and chromium to be used. It was alleged in the complaint that the appellants were required to supply the equipments as per the terms of the contract. As per the complaint, in course of physical inspection of the plant, the DOP found that three runner turbines viz. Turbines 1, 2 and 3 were cracked and damaged. Therefore, the damaged components were sent for testing and the National Test House, Calcutta submitted its report and it was found that the chemical composition of the broken runner was found containing 5.28% nickel and 7.5% chromium, which composition was contrary to the specification as per the agreement. Therefore, it was alleged that M/s SPML, Calcutta had supplied sub-standard turbines containing composition of materials not in accordance with the specification of MoU, resulted in frequent damage of runner turbine buckets. On the strength of written complaint, an FIR was lodged/registered. It appears that during the course of the investigation, the investigating officer found/discovered the illegalities/irregularities in awarding the contract at a higher price. Even during the course of investigation, the investigating officer found some officials responsible for the omission and neglect of duties and it was found that the officials named in the charge-sheet were involved/connived with the firm M/s SPML Infra Limited with a view to cheat the Government of Arunachal Pradesh. After conclusion of the investigation, the investigating officer filed the final report/charge-sheet on 28-5-2004 against the appellants and others for the offences under Sections 120-B and 420 IPC.
xxx xxx xxx 6 W.P. (Cr.) No. 279 of 2021
6. Considering the averments and the allegations in the FIR and even the charge-sheet the main allegations are that the company, namely, M/s SPML Infra Limited supplied sub-standard materials--runner bucket turbines and the supplied runner bucket turbines were not as per the technical specifications. It is also required to be noted that there is no FIR/complaint/charge-sheet against the company--M/s SPML Infra Limited and the appellants are arrayed as an accused as the Managing Director and Director of M/s SPML Infra Limited respectively. From a bare reading of the FIR and even the charge-sheet, there are no allegations that there was a fraudulent and dishonest intention to cheat the Government from the very beginning of the transaction. Even there are no specific allegations and averments in the FIR/charge-sheet that the appellants were in-charge of administration and management of the company and thereby vicariously liable. In light of the aforesaid, the prayer of the appellants to quash the criminal proceedings against the appellants for the offence under Section 420 IPC is required to be considered.
7. While considering the prayer of the appellants to quash the impugned criminal proceedings against the appellants for the offence under Section 482 CrPC are required to be referred to.
7.1. In Bhajan Lal, in para 102, this Court has categorised the cases by way of illustration wherein the powers under Article 226 or the inherent powers under Section 482 CrPC could be exercised either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. In para 102, it is observed and held as under: (SCC pp. 378-79) "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 7 W.P. (Cr.) No. 279 of 2021 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 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 or the Act concerned (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 Act concerned, 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."
The aforesaid decision of this Court has been followed subsequently by this Court in a catena of decisions.\ 7.2. In Vesa Holdings (P) Ltd., it is observed and held by this Court that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. It is further observed and held that for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. It is further observed and held that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC can be said to have been made out. It is further observed and held that the real test is whether the allegations in the complaint disclose the 8 W.P. (Cr.) No. 279 of 2021 criminal offence of cheating or not.
7.3. In Hira Lal Hari Lal Bhagwati, in para 40, this Court has observed and held as under: (SCC p. 280) "40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Penal Code, 1860 does not arise. We have read the charge-sheet as a whole. There is no allegation in the first information report or the charge-sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of customs duty or cheating the Government of India as the Cancer Society is a non-profit organisation and, therefore, the allegations against the appellants levelled by the prosecution are unsustainable. The Kar Vivad Samadhan Scheme certificate along with Duncan and Sushila Rani judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process."
(emphasis in original) It is further observed and held by this Court in the aforesaid decision that to bring home the charge of conspiracy within the ambit of Section 120-B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is 9 W.P. (Cr.) No. 279 of 2021 further observed and held that it is difficult to establish conspiracy by direct evidence.
7.4. In V.Y. Jose, it is observed and held by this Court that one of the ingredients of cheating is the existence of fraudulent or dishonest intention of making initial promise or existence thereof, from the very beginning of formation of contract. It is further observed and held that it is one thing to say that a case has been made out for trial and as such criminal proceedings should not be quashed, but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all.
7.5. In Sharad Kumar Sanghi, this Court had an occasion to consider the initiation of criminal proceedings against the Managing Director or any officer of a company where company had not been arrayed as a party to the complaint. In the aforesaid decision, it is observed and held by this Court that in the absence of specific allegation against the Managing Director of vicarious liability, in the absence of company being arrayed as a party, no proceedings can be initiated against such Managing Director or any officer of a company. It is further observed and held that when a complainant intends to rope in a Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. 7.6. In Joseph Salvaraj A. v. State of Gujarat, it is observed and held by this Court that when dispute between the parties constitutes only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.
7.7. In Inder Mohan Goswami v. State of Uttaranchal, it is observed and held by this Court that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. It is further observed and held by this Court that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. It is further observed and held that inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself.
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 CrPC and to quash the impugned criminal proceedings.
8.1. As observed hereinabove, the charge-sheet has been filed against the appellants for the offences under Section 420 read with Section 120-B IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the charge-sheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract 10 W.P. (Cr.) No. 279 of 2021 between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning
--1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out."
By way of referring this judgment, learned counsel appearing for the petitioners submitted that in that case machinery supplied were cracked and damaged and in the case in hand the allegations of low quality of coal supply has been made out and the facts of the case of Sushil Sethi (supra) are similar to the facts of the present case and this case is fit to be allowed.
10. Learned counsel appearing for the petitioners further pressed I.A. No.5393 of 2021 on the ground that without issuing any summon and without following the procedure prescribed under the Cr.P.C., the petitioners have been arrested, which is not permissible in view of the judgment rendered by the Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar & another, reported in (2014) 8 SCC
273.
11. Paragraphs 9, 11 and 12 of the said judgment are quoted herein below:
11 W.P. (Cr.) No. 279 of 2021
"9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
41-A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily 12 W.P. (Cr.) No. 279 of 2021 and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)
(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
By way of referring this judgment, he submitted that the directions issued at paragraph no.11 of this judgment has not been followed and the petitioners' liberty has been kept at stake.
12. On the ground of interim release from custody under Article 226 of the Constitution of India, learned counsel appearing for the petitioners relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Arnab Manoranjan Goswami v. State of Maharashtra and others, reported in (2021) 2 SCC 427.
13. Paragraphs 48, 63, 70 and 74 of the said judgment are quoted 13 W.P. (Cr.) No. 279 of 2021 herein below:
"48. The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 CrPC. The High Court, by its judgment dated 9-11-2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant's prayer for interim bail and relegated him to the remedy under Section 439 CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 IPC, this Court is now called upon to perform the task.
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63. The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 CrPC. While dealing with the petition under Section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant's application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of State power.
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70. More than four decades ago, in a celebrated judgment in State of Rajasthan v. Balchand, Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is "bail, not jail". The High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the "subordinate judiciary". It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the 14 W.P. (Cr.) No. 279 of 2021 parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground--in the jails and police stations where human dignity has no protector. As Judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system's primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humaneness of the justice system".
Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
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74. While reserving the judgment at the conclusion of arguments, this Court had directed the release of all the three appellants on bail pending the disposal of the proceedings before the High Court. The following operative directions were issued on 11-11-2020: (Arnab Manoranjan Goswami case, SCC p. 803, paras 6-8) "6. We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses.
7. The jail authorities concerned and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith.
8. A certified copy of this order shall be issued during the course of the day."
By way of referring this judgment, Mr. Indrajit Sinha, learned counsel appearing for the petitioners submitted that in the identical situation, the Hon'ble Supreme Court has issued direction to release the petitioner of that case as interim arrangement by discussing Article 226 of the Constitution of India and Section 482 Cr.P.C.- inherent power of the High Court.
14. Learned counsel appearing for the petitioners further submitted that 15 W.P. (Cr.) No. 279 of 2021 on the point of charge-sheet and arrest, the Hon'ble Supreme Court has recently considered the case of Siddharth v. The State of Uttar Pradesh & anr. in Criminal Appeal No.838 of 2021 [arising out of SLP (Crl.) No.5442/2021] whereby it has been held that for filing of charge- sheet, there is no need of arresting a person who is cooperating in the investigation. He also submitted that recently the Hon'ble Supreme Court has considered the case of Arnesh Kumar (supra) in the case of M.A. Khaliq & ors. v. Ashok Kumar & anr. in Criminal Appeal No.1003 of 2021 [arising out of Special Leave Petition (CRL.) No.10427/2019] whereby the order of the Division Bench of the High Court was struck down and the order passed by the learned Single Judge was restored by the Hon'ble Supreme Court. The learned Single Judge has initiated contempt proceeding in view of the direction given in the case of Arnesh Kumar (supra) and that is why that case was allowed by the Hon'ble Supreme Court.
15. Learned counsel appearing for the petitioners referred Annexure-E at page 66 of the counter affidavit, which is a letter dated 31.08.2021 by which the concerned police officer has requested the court below for issuance of warrant of arrest. By way of referring to the evidences recorded in that letter, he submitted that the police has stated that sufficient evidence is there for charge-sheet and requested for warrant of arrest, which shows how in haste the police has proceeded in the case in hand.
16. Lastly on the point of interim relief, learned counsel appearing for the petitioners relied upon the judgment rendered by this Court in the case of Ashok Kumar Agarwal & ors. v. State of Jharkhand & ors. , reported in 2015 (4) JLJR 605 and submitted that Sections 41 and 73 16 W.P. (Cr.) No. 279 of 2021 Cr.P.C. has been considered by this Court and appropriate relief was allowed in favour of those petitioners.
17. On these grounds, Mr. Indrajit Sinha, learned counsel appearing for the petitioners submitted that the F.I.R. is bad in law and the petitioners are entitled for interim relief by way of releasing them on interim bail.
18. Mr. R.S. Mazumdar, learned Senior counsel appearing for respondent no.2 submitted that there are ingredients of those Sections and a case of cheating is made out against the petitioners and at this stage, this Court may not interfere under Article 226 of the Constitution of India. He referred offer letter dated 31.12.2020, contained in Annexure-A of the counter affidavit and submitted that a peaks down coking coal was required to be supplied and inferior quality coal in fact ash/dust of the coal has been supplied which amounts to cheating. He further referred to purchase order, contained in Annexure-A/1 of the counter affidavit and submitted that in light of that the payment has been made to the petitioners. By way of referring the analysis report, he submitted that maximum fluidity was shown as 14 and in the test report, maximum fluidity DDPM by the petitioners have been shown as 55. By way of referring this, he submitted that it is crystal clear that the coal was sub-standard. He also submitted that respondent no.2 has also lodged Miscellaneous Case No.2144 of 2021 before the Executive Magistrate, Dhanbad on 13.09.2021 by way of informatory petition against the petitioners about misappropriation of crores of rupees of respondent no.2. He further submitted that on 25.08.2021, one of the staff of respondent no.2 has also lodged a complaint of threatening before the Officer-In-charge, Paradip Model Police Station, which has been annexed as Annexure-K of the counter affidavit. He also referred to tax invoice, contained in Annexure-D of the counter 17 W.P. (Cr.) No. 279 of 2021 affidavit. On these grounds, he submitted that there are ingredients of Sections 406, 420, 120-B, 467, 468, 471, 504, 506 and 34 I.P.C. and at this stage, this Court may not make a roaming enquiry for coming to a conclusion that the case under those Sections are made out or not. On the aforesaid grounds, he further submitted that so far as the F.I.R. is concerned, there is no ground of interference by this Court. He distinguished the judgment relied by Mr. Indrajit Sinha, learned counsel appearing for the petitioners in the case of Sushil Sethi (supra). By way of referring paragraphs 2.1, 8.1 and 8.2 and submitted that in the case of Sushil Sethi, the intention of the company was very clear and in that case, charge-sheet was submitted and the company has settled the dispute, which are not the facts of the present case and on that ground, the case relied by Mr. Indrajit Sinha is not helping the petitioners. By way of opposing I.A. No.5393 of 2021, whereby, the prayer for interim bail has been made out, he submitted that the petitioners have already filed bail petition for regular bail before the trial court, which has been rejected vide order dated 15.09.2021 and thereafter they have moved before the learned Sessions Judge, Dhanbad for grant of regular bail and hearing in that case is going on. He further submitted that other co-accused persons have preferred A.B.P. No.2033 of 2021 before the learned court below, whereby, they have made a submission for referring the matter to mediation and upon the said submission made by them, the matter has been referred to mediation centre and the learned court below has passed an order of no-coercive steps against the other co-accused persons in that A.B.P. He further submitted that once the petitioners are availing the remedy under the Cr.P.C., this I.A. is not maintainable under Article 226 of the Constitution of India. He also submitted that so far as the judgment 18 W.P. (Cr.) No. 279 of 2021 passed in the case of Arnesh Kumar (supra) is concerned, that order was meant for an offences less than 7 years of imprisonment. Thus, the judgment passed in the case of Arnesh Kumar is not applicable in the case of the petitioners as the petitioners are also facing charge under Section 467 I.P.C. By way of referring paragraphs 1, 4, 5, 6, 7, 8, 10, 12, 13, 14, 19 to 21 and 64 of the judgment passed in the case of Arnab Manoranjan Goswami (supra), he submitted that in Arnab Manoranjan Goswami case, the case was already closed under Section 306 I.P.C. and all of a sudden, the case was opened and that petitioner was being harassed and interpreting those circumstances, the Hon'ble Supreme Court has directed to release the petitioner of that case as an interim measure. Lastly, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Radha Krishan Industries v. State of Himachal Pradesh and others, reported in 2021 SCC OnLine SC 334.
19. Paragraph 28 of the said judgment is quoted herein below:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for 19 W.P. (Cr.) No. 279 of 2021 enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
20. By way of referring paragraph 28(v) of this judgment, learned Senior counsel appearing for respondent no.2 submitted that when remedy or procedure for enforcing the right or liability is created by a statute, the discretionary remedy under Article 226 of the Constitution is not permissible. On these grounds, he submitted that the said I.A. is fit to be rejected.
21. Mr. Manoj Kumar, learned counsel for the respondent-State adopted the arguments of Mr. R.S. Mazumdar and he supplemented his argument by way of relying upon the judgment rendered by the Hon'ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, reported in 2021 SCC OnLine SC 315.
22. Paragraph 80 of the said judgment is quoted herein below:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code 20 W.P. (Cr.) No. 279 of 2021 to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) 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;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) 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;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) 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 and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) 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;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) 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. 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;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) 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 21 W.P. (Cr.) No. 279 of 2021 this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be 22 W.P. (Cr.) No. 279 of 2021 misunderstood and/or misapplied."
23. By way of referring paragraph 80 (xvi) of the said judgment, he submitted that normally when the investigation is in progress and the facts are hazy, it has been held that the High Court may not exercise its power under Section 482 Cr.P.C. and under Article 226 of the Constitution of India.
24. In light of the above facts and the laws argued on behalf of the parties, the Court has perused the F.I.R. There is prima facie allegation of non-supply of coal as agreed between the parties particularly the sub- standard coal in the form of ash/dust. There is also allegation of forcefully delivery of the coal. The documents annexed with the counter affidavit also suggest that there are documents of transaction. Prima facie, it cannot be said that ingredients of Sections 406, 420, 120-B, 467, 468, 471, 504, 506 and 34 I.P.C. are not made out. Prima facie, the allegation of supply of sub-standard of coal is alleged in the F.I.R. Prima facie , the allegation of not fulfilling the promise is also made in the F.I.R. Prima facie, the allegations of filthy language, abuse and threatening of life are also made in the F.I.R. The complaint of threatening has been filed by one of the employee of respondent no.2 before the Officer-In-charge, Paradip Model Police Station on 25.08.2021 also fortified the allegation of threatening by the petitioners. The informatory petition has also been filed before the Executive Magistrate, Dhanbad in this regard. The police is already investigating in the matter and it has been stated in the letter requesting warrant of arrest against the petitioners before the concerned court that sufficient evidence is there. On the one hand, this is not a case of interference to quash the F.I.R. and entire criminal proceedings, at this stage, in view of the fact that prima facie allegations are there against the 23 W.P. (Cr.) No. 279 of 2021 petitioners under Sections 406, 420, 120-B, 467, 468, 471, 504, 506 and 34 I.P.C. The investigation is in progress and the facts are hazy and the entire material evidences are not before this Court. No case of quashing the F.I.R. is made out.
25. In view of the aforesaid facts, the prayer for quashing the F.I.R. and entire criminal proceedings is, hereby, rejected. I.A. No.5393 of 2021
26. So far as quashing of remand order dated 10.09.2021 and I.A. No. 5393 of 2021 are concerned, both are being considered now. In the case of Arnesh Kumar (supra), the Hon'ble Supreme Court has issued the guidelines and has considered that for an offence punishable with imprisonment for a term which may be less than 7 years or which may extend to seven years, with or without fine cannot be arrested by the police officer on his satisfaction as such person has committed the offence punishable and it has been held by the Hon'ble Supreme Court that reason has to be assigned why such arrest is necessary. The principle of this case is required to be followed.
27. In the case of Arnab Manoranjan Goswami (supra), the case was already closed under Section 306 I.P.C. and all of a sudden, it was opened and the officer of the news channel was cooperating with the police officer in the investigation and thereafter it was closed and later on it was opened and the petitioner of that case was taken into custody and in that fact, the Hon'ble Supreme Court held that liberty of the petitioner was jeopardized and that is why, interim bail was granted on certain terms and conditions. In the case in hand, the petitioners have been taken into custody and they have already availed the bail, which has been rejected by the court below vide order dated 15.09.2021. It has been submitted by Mr. Mazumdar, 24 W.P. (Cr.) No. 279 of 2021 learned Senior counsel appearing for respondent no.2 that now the petitioners have preferred bail petition before the court of learned Sessions Judge, Dhanbad, in which, the arguments are going on and this fact has not been denied by the learned counsel appearing for the petitioners. The other co-accused persons have preferred anticipatory bail petition in which interim protection was provided on the ground that mediation be held and this was on the submission of the other co-accused persons. The Cr.P.C. has already prescribed remedy or procedure for relief, which is being availed by the petitioners by way of filing the bail petition, but that does not mean that once the high-handedness is there, the Court will not interfere.
28. By the order dated 20.09.2021, this Court called the entire order- sheet of Dhansar P.S. Case No.155/2021, pending in the court of Ms. Moumita Guin, Judicial Magistrate, 1st Class, Dhanbad/successor court. The entire order-sheet of the case has been placed on the record, pursuant to that order. It appears that on 21.08.2021, the said F.I.R. was received in the concerned court awaiting final form. On 01.09.2021, the I.O. has made prayer for issuance of warrant of arrest against the petitioners along with other co-accused, which was allowed. On 10.09.2021, the petitioners were produced before the concerned court and they were remanded in the case. Later on, on the same day a petition was filed on behalf of petitioner no.2- Anil Goyal alleging therein that he is suffering from various ailments. The direction was issued to provide him medical facility by the Jail Superintendent. On 15.09.2021, bail petition filed on behalf of the petitioners was rejected. The other co-accused persons have been provided interim relief in A.B.P. No.2033 of 2021, which was recorded in the order dated 20.09.2021 of the concerned court. Prima facie, the case is 25 W.P. (Cr.) No. 279 of 2021 arising out of commercial transaction and in spite of issuing any summon and asking the petitioners to join in the investigation, all of a sudden, the police has obtained the arrest order. Annexure-E annexed with the counter affidavit of respondent no.2 is the request letter of the I.O. to the concerned court for issuance of warrant on the ground that there are sufficient materials in the charge-sheet. This document is not the certified copy of that letter, however, respondent no.2 has annexed this letter shows how he has managed to obtain that letter. The F.I.R. was lodged on 19.08.2021 and the letter is dated 31.08.2021 stating that the investigation is almost complete. It is surprising that within 13 days of lodging of F.I.R., the police has completed the investigation which raise eye-brow on the role of the police. The co-accused persons have been granted interim relief in A.B.P. No.2033 of 2021. The charge-sheet has not yet been submitted and before submission of the charge-sheet, in absence of any allegation of non- cooperation in the investigation on behalf of the petitioners, the warrant of arrest has been obtained and they have been arrested. This aspect of the matter has been considered by the Hon'ble Supreme Court in the case of Siddharth (supra) and in that case also, the issue was of supply of stone for which royalty was paid in advance to the holders and claims not to be involved in the tendering process. Section 170 Cr.P.C. has been considered by the Hon'ble Supreme Court and judicial precedents have been considered by which that Section was interpreted and the Delhi High Court dealt with Section 170 Cr.P.C. The case of Court on its own motion v. Central Bureau of Investigation has been taken note by the Hon'ble Supreme Court in the case of Siddharth (supra). The relevant extracts are as under:
"15. Word "custody" appearing in this Section does not contemplate either police or judicial custody. It merely 26 W.P. (Cr.) No. 279 of 2021 connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the chargesheet whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.
16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody.
[...]
19. It appears that the learned Special Judge was labouring under a misconception that in every non- bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.
20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out."
29. In Deendayal Kishanchand & Ors. v. State of Gujarat , the observation made by the High Court are quoted herein below, which has also been taken note by the Hon'ble Supreme Court in the case of Siddharth (supra):
"2....It was the case of the prosecution that two accused, i. e. present petitioners Nos. 4 and 5, who are ladies, were not available to be produced before the Court along with the charge-sheet, even though earlier they were released on bail. Therefore, as the Court refused to accept the charge-sheet unless all the accused are produced, the charge-sheet could not be 27 W.P. (Cr.) No. 279 of 2021 submitted, and ultimately also, by a specific letter, it seems from the record, the charge-sheet was submitted without accused Nos. 4 and 5. This is very clear from the evidence on record. [...] ... ... ... ... ... ...
8. I must say at this stage that the refusal by criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law. Therefore, it should be impressed upon all the Courts that they should accept the charge-sheet whenever it is produced by the police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omission or requirement in the charge-sheet. But when the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts and get suitable orders so that such difficulties would not arise henceforth."
30. The Hon'ble Supreme Court by referring those judgments, approved the judicial view and observed that it has rightly been observed on consideration of Section 170 Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. There is no allegation against the petitioners that they have not cooperated in the investigation. The personal liberty has been considered by the Hon'ble Supreme Court in the case of Siddharth (supra), which is quoted herein below:
"We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it.4 If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in 28 W.P. (Cr.) No. 279 of 2021 fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."
31. Thus on these grounds, the petitioners have made out a case of interference so far as their arrest before the submission of charge-sheet is concerned. In the letter by which warrant of arrest has been requested to be issued, it has been disclosed that sufficient evidence for charge is there against the petitioners. Petitioner no.1 is the Managing Director and petitioner no.2 is the Director of the company and it has not been disclosed that they are responsible for day-to-day affairs of the company. The remand order dated 10.09.2021 has been placed on record, pursuant to the order passed by this Court dated 20.09.2021 and the prayer in the writ petition has been made to quash the said remand order dated 10.09.2021 after receipt of the records as it was not issued to the petitioners. On production of the accused before the Magistrate, the Magistrate is also required to examine whether the reasons given by the I.O. are justified on the material placed before him by the I.O. Moreover, simple opinion is not sufficient. It must be supported by materials on record giving rise to such opinion. To that extent, the learned Magistrate is required to make a judicial enquiry. Then, the Magistrate can only authorize detention of the accused.
32. Reference may be made to the case of Joginder Kumar v. State of U.P., reported in (1994) 4 SCC 260 of which paragraph 20 is quoted herein below:
"20. .............. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self- esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an 29 W.P. (Cr.) No. 279 of 2021 offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."
33. It has been held by the Hon'ble Supreme Court in the case of Arnab Manoranjan Goswami (supra), at paragraph no.64 that an application for grant of bail under Article 226 of the Constitution of India in a suitable case, the High Court must consider the settled factors which emerge from the precedents of the Court. These factors were summarized as follows by the Hon'ble Supreme Court:
"64.1. The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction.
64.2. Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses. 64.3. The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice.
64.4. The antecedents of and circumstances which are peculiar to the accused.
64.5. Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR.
64.6. The significant interests of the public or the State and other similar considerations."
34. The petitioners are Managing Director and Director of the Company and are not having flight-risk.
35. The remand order has already been taken effect and in that view of the matter, in the interest of justice considering the liberty of the 30 W.P. (Cr.) No. 279 of 2021 petitioners, the writ petition can be disposed of directing the petitioners shall be released on bail in connection with Dhansar P.S. Case No.155/2021, subject to each of them execute two sureties of Rs.50,000/- (Rupees Fifty Thousand) to the satisfaction of the concerned court. They are however directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses.
36. On these grounds, I.A. No. 5393 of 2021 is allowed and disposed of.
37. Accordingly, the criminal writ petition is allowed in part in above terms.
(Sanjay Kumar Dwivedi, J.)
High Court of Jharkhand, Ranchi
Dated: the 28th day of September, 2021
Ajay/ A.F.R.