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TMI Blog1990 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... reply of the Chief Justice of England, Sir Edward Coke when James-I once declared Then I am to be under the law. It is treason to affirm it -so wrote Henry Bracton who was a Judge of the King's Bench. 2. The words of Bracton in his treatise in Latin good Rex non debet esse sub homine, sed sub Deo et Legu (That the king should not be under man, but under God and the law) were quoted time and time again when the Stuart Kings claimed to rule by divine right. We would like to quote and requote those words of Sir Edward Coke even at the threshold. 3. In our democratic polity under the Constitution based on the concept of 'Rule of Law' which we have adopted and given to ourselves and which serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME. 4. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be. 5. The heated and lengthy argument advanced in general by all the learned Counsel on the magnitude and the multi-dimensional causes of corruption and also about the positive and constructiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure Code ('the Code' for short) and of the Prevention of Corruption Act, 1947 ('the Act' for short). 12. This appeal by grant of special leave is directed by the appellants, namely, the State of Haryana and two others assailing the judgment dated 8.9.1988 of a Division Bench of the High Court of Punjab and Haryana rendered in Writ Petition No. 9172/87 quashing the entire criminal proceedings inclusive of the registration of the Information Report and directing the second respondent, Mr. Dharam Pal to pay the costs to the first respondent, Ch. Bhajan Lal. 13. Ch. Bhajan Lal was a Minister in 1977 when Ch. Devi Lal was the Chief Minister of Haryana state and he became the Chief Minister of the state of Haryana in 1982-87. During the initiation of this criminal proceeding in question, he was the Union Minister for Environment and Forests, Government of India. 14. In the general election to the legislative assembly of the state of Haryana in June 1987, Smt. Jasma Devi, the wife of Ch. Bhajan Lal contested from Adampur constituency on being sponsored by the Congress (I) party as against the second respondent, Mr. Dharam Pal who was a nominee of the Lok Dal. Mrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shape of buildings, land, shares and ornaments etc. is far beyond his legal means and, therefore, an investigation should be directed and appropriate action be taken against Ch. Bhajan Lal. 18. On the complaint presented by Dharam Pal, the Officer on Special Duty (OSD) in the Chief Minister's Secretariat made an endorsement on 12.11.1987 in Hindi, the translation of which reads C.M. has seen. For appropriate action and marked the same to the Director General of Police (DGP), who in turn made an endorsement on 12.11.1987 itself reading Please look into this; take necessary action and report and marked it to the Superintendent of Police (S.P.) Hissar. The said complaint along with the above endorsements of OSD and DGP was put up before the S.P., the second appellant on 21.11.1987, on which date itself the S.P. made his endorsement reading Please register a case and investigate . 19. The SHO (the third appellant) registered a case on the basis of the allegations in the complaint Under Sections 161 and 165 of the Indian Penal Code and Section 5(2) of the Act on 21.11.1987 itself at 6.15 P.M. and took up the investigation. On the foot of the First Information Report (F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations in detail in the light of the explanatory and denial statement which according to the High Court has not been either explained or denied by the State and rejected the plea of the appellants 2 and 3 submitting that it is wholly premature to say anything with regard to the truthfulness or otherwise of the allegations and observed as follows: 1. ...it is clear that the allegations made are just imaginary and fantastic. 2. ...his (respondent No. 2 Dharam Pal) sole object in putting complaint Annexure P-9 was to set the machinery of the criminal law in motion against the petitioner without verifying the truth or otherwise of his own allegations before levelling them against the petitioner in the complaint Annexure P-9 and that he was solely depending upon the fishing enquiry which may be undertaken by the police in the course of its investigation without being himself possessed or known to or seen any material or documents justifying his allegations of benami purchases, or under valuation of property allegedly purchased by the petitioner. 3. Allegations obtaining in Annexure P-9 are, therefore, the outcome of a desparate, frustrated mind.... 4. Irresponsible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent with the costs of the writ petition. In the penultimate paragraph of its judgment, the learned Judges cited a historical event, namely, a challenge made by Pores before Alexander about which we will express our view at the appropriate place of this judgment. The appellants on being aggrieved by the impugned judgment of the High Court has preferred the present appeal. At this juncture we would like to point out that one Chhabil Dass, a third party has filed an application accompanied by an affidavit praying to implead him as a party and stating that he has got sufficient materials to substantiate the allegations averred in the complaint of the second respondent. As the applicant Chhabil Dass was not a party to the proceedings before the High Court, his application is rejected. 25. Mr. Rajinder Sachhar, the learned senior counsel along with the learned Advocate General of Haryana State assisted by Mr. Mahabir Singh appeared for the appellants whilst Mr. R.K. Garg, the learned senior counsel appeared for the second respondent, Dharam Pal on whose complaint the impugned first information report had been registered and the investigation was commenced. Mr. K. Parasaran, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al arguments they also filed written submissions. We after carefully and assiduously examining the contentions and counter-contentions advanced by all the parties both on the legal and factual aspects and after scrupulously scanning the materials placed on record and examining the written arguments submitted by the parties, would like to deal with those contentions seriatim. 28. Before discussing which of the submissions ought to prevail, we shall in the foremost deal with the legal principles governing the registration of a cognizable offence and the investigation arising thereon. Section 154(1) is the relevant provision regarding the registration of a cognizable offence and that provision reads as follows: Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ensuing part of this judgment, we do not propose to deal with those sections in-extensor in the present context). In case, an officer incharge of a police station refuses to exercise the jurisdiction vested on 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) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to two offences to which atleast one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officers can investigate such offences with the same powers as he has while investigating a cognizable offence. 35. The next key question that arises for consideration is whether the registration of a criminal case Under Section 154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code. 36. Section 157(1) requires an Officer Incharge of a Police Station who 'from information received or otherwise' has reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate Under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a police report and to either proceed in person or depute any one of his subordinate Officers not being below such rank as the State Government may, by general or special order, prescribe in this behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. The said observation reads thus: The power of the Magistrate Under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate Under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). 37. The above two provisions-that is Sections 156 and 157 of the Code are followed by Section 159 which empowers a Magistrate, on receipt of a report forwarded by the police Under Section 157 to direct an investigation or if he thinks fit, at once to proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in the manner provided in the Code. The expression on receiving suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved Under Section 491, Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. 39. Justice D.A. Desai speaking for the Bench in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (albeit) while dealing with the powers of investigation of a police officer as contemplated in Section 156 of the CrPC has stated thus: There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite condition, contemplated in Section 157(1). The condition is that the officer incharge of a police station before proceeding to investigate the facts and circumstances of the case should have reason to suspect the commission of an offence which he is empowered Under Section 156 to investigate. Section 135 of the CrPC of 1861 (Act XXV of 1861) required the police officer on receipt of a complaint or information constituting any of the offences specified in column 3 of the schedule annexed to that Act should proceed with the investigation, but this Code did not require the condition of entertaining the reason to suspect the commission of an offence before commencing the investigation. Subsequently, in the CrPC of 1872 a provision, namely, Section 114 which was more or less similar to the present Section 157(1) was introduced which provision required the police officer to have reason to suspect the commission of a cognizable offence before he proceeded to investigate the facts and circumstances of the case. Thereafter in the CrPC of 1882 a provision, namely, Section 157 which was identical to that of the present Section 157 except for some variations in the latter part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... something without proof, or upon very slight evidence, or upon no evidence at all.... 47. In words and Phrases (Permanent Edition 40A) at page 590, the word 'suspicion' is defined thus: Suspicion' implies a belief or opinion as to guilt, based on facts or circumstances which do not amount to proof. Scaffido v. State 254 N.W. 651. The state of mind which in a reasonable man would lead to inquiry is called mere 'suspicion'. Stuart v. Farmers', Bank of Cuba City 117 N.W. 820. Again at page 591 the said word is expounded as follows: The word 'suspicion' is defined as being the imagination of the existence of something without proof, or upon very slight evidence, or upon no evidence at all. Cook v. Singer Sewing Mach. Co. 32 P. 2d 430, 431, 138 Cal. App. 418. 48. See also Emperor v. Vimlabai Deshpande; United States v. Cortez 66 L.Ed. 2d (US)(SCR)623 (II (A (3); and Dallison v. Caffery [1964] 2All E.R. 610. 49. One should not lose sight of the fact that Section 157(1) requires the police officer to have reason to suspect only with regard to the commission of an offence which he is empowered Under Section 156 to investigate, but not with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence investigation Under Section 157 of the Code. Their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. 53. As pointed out in the earlier part of this judgment, Section 157(1) is qualified by a proviso which is in two parts (a) and (b). Clause (a) of the proviso is only an enabling provision with which we are not very much concerned. However, Clause (b) of the said proviso imposes a fetter on a police officer directing him not to investigate a case where it appears to him that there is no sufficient ground in entering on an investigation. As Clause (b) of the proviso permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw his satisfaction only on the materials which were placed before him at that stage, namely, the first information together with the documents, if any, enclosed. In other words, the police officer has to satisfy himself only on the allegations mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused that the work of investigation is carried on unfairly and with any ulterior motive. 58. Krishna Iyer, J. in Nandini Satpathy v. P.L. Dani and Anr. 1978 CriLJ 968 has expressed his view thus: ...a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample under foot the guaranteed right of testimonials tacitness. 59. Bhargava, J. speaking for the Bench in S.N. Sharma v. Bipen Kumar Tiwari and Ors. (albeit) has stated thus: It appears to us that, though the CrPC gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy. 63. Here-to-fore, we have dealt with the intendment of the various statutory provisions relating to the registration of the First Information Report, the statutory duty cast on the police officers to investigate the cognizable offences, the such authority of the police officers in-the field of investigation and the circumscribed limits imposed on such auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means of Ch. Bhajan Lal. 68. Both in the Writ Petition (Writ Petition No. 9172/87) filed before the High Court as well in the counter affidavit filed before this Court, Ch. Bhajan Lal (the first respondent herein) has attempted to answer those allegations levelled against him by (1) giving a detailed account revealing a chronicle of the old political rivalry that existed between him on the one hand and Ch. Devi Lal and Dharam Pal on the other and a brief summary of a spate of criminal cases in which the parties to this proceeding and their men were embroiled and (2) offering an explanation to some of the allegations and emphatically abjuring the rest. In support of his assertions made on oath in the counter affidavit, he has enclosed 11 annexures. An additional affidavit has been filed by Dharam Pal by way of amplification alleging that Bhajan Lal is constructing a palatial house worth about Rs. 50 lakhs, the built-in area of which is not less than 21,100sq. ft. 69. During the course of the hearing of the case, an un-numbered interlocutory application in the Special Leave Petition enclosed with a copy of an un-numbered Writ Petition (Civil) of 1988 preferred before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unnecessary to reproduce them in this connection. The impugned judgment spells out that the learned Judges of the High Court had felt that the non-filing of a written statement by a competent authority of the State Government by way of reply to the averments made in the Writ Petition is a serious flaw on the part of appellants and as such the averments of Ch. Bhajan Lal should be held as having disproved the entire crimination alleged in the F.I.R. The above view of the High Court in our opinion, is neither conceivable nor comprehensible. Further no adverse inference could be drawn on the mere non-filing of a written statement by the State of Haryana in cases of this nature especially when the matter relates to serious disputed facts, yet to be investigated. As rightly pointed out by Mr. Rajinder Sachhar the stage is pre-mature and as such the Government could not be expected to have in its possession all the details in support of the allegations made in the complaint before any enquiry or investigation is launched and completed. Similarly, the appellants 2 and 3 who are only police officials also cannot be expected to give a detailed reply to the averments made in the Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted by the High Court, we do not intend or propose to examine the truth or otherwise of each of the instances in snippet form and thereafter string them together and express any opinion either way, since in our view any such opinion may affect the case of either party or cripple the course of investigation. 74. An argument was advanced by Mr. Parasaran submitting that the proposition of law laid down by this Court in Swapan Kumar Guha's case (albeit) holding that the legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case clearly shows that this Court has carved out an area wherein the Courts can interfere in criminal proceedings at any stage if circumstances so warrant and quash the same. Based on the above proposition of law, he states that as the allegations in the present case which demonstrably shown to be speculative and false the judgment of the High Court quashing the proceedings has to be sustained. In our considered view, this submission cannot be countenanced for the reasons-firstly we, at this premature stage, are unable to share the view expressed by the High Court that the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh decision in registering the F.I.R, and commencing the investigation and that the said First Information Report bears on its face 'the stamp of hurry and want of care'. He, in this connection, drew our attention to an observation of the High Court which reads thus: Over zealous police officers, who tried to be more loyal to the king i.e. respondent No. 2 than the king himself however fell into the trap laid by respondent No. 5 and ordered registration of the case and its investigation without any clue.... (Respondents 2 and 5 mentioned in the above observation are Ch. Devi Lal and Dharam Pal respectively). 78. In a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to whom the commission of a cognizable offence is reported, is to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. When such is the accepted principle, can it be said that the police officers in the instant case have over-zealously taken a hasty decision by misusing their positions in registering the case and commencing the investigation? To answer this query, let us recapitul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and subject him to any harassment and victimisation, because in case the allegations of illegal accumulation of wealth are found during the course of investigation as baseless, the harm done not only to that person but also to the office, he held will be incalculable and inestimable. 80. In this connection, it will be appropriate to recall the views expressed by Mitter, J. in Sirajuddin v. State of Madras 1971 CriLJ 523 in the following words: Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general....The means adopted no less than the end to be achieved must be impeccable. 81. Mudholkar, J in a separate judgment in The State of Uttar Pradesh v. Bhagwant Kishore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the exercise of its extra-ordinary jurisdiction under Article 226 should not have interfered with the unbridled power of the police officials and quashed the entire proceedings from the stage of the registration of the case especially when the allegations made in the complaint limpidly constitute offences both under the Prevention of Corruption Act and the Indian Penal Code and this unjustifiable interference is in clear violation of the principles laid down by this Court in a host of decisions. In support of their submissions, they drew our attention to a catena of decisions, of which we will presently refer to a few. 86. The Judicial Committee in its oft-quoted decision, namely, King Emperor v. Khwaja Mazir Ahmad (Albeit) though strongly observed that the judiciary should not interfere with the police in matters which are within their province, has qualified the above statement of law by saying: No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation. 87. The above observation shows that an investigation can be quashed if no cognizable offence is disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. 91. In Hazari Lal Gupta v. Rameshwar Prasad and Anr. etc. 1972 CriLJ 298 , this Court has stated thus: In exercising jurisdiction Under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is 'reliable or not'. Where again, investigation into the circumstances of an alleged cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts extraordinary jurisdiction under Article 226 of the Constitution. On the facts of that case, this Court set aside the order of the High Court quashing the order of the Magistrate in postponing the consideration of the report submitted to him till the final report of completion of further investigation, directed by the State Government was submitted to him and held that the High Court in exercise of its extraordinary jurisdiction committed a grave error in giving the direction virtually amounting to mandamus to close the case before the investigation was complete. 97. See also Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors. 1983 CriLJ 172. 98. The classic exposition of the law is found in State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (cited above). In this case, Chandrachud, CJ in his concurring separate judgment has stated that if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received . Justice A.N. Sen who wrote the main judgment in that case with which Chandrachud, CJ and Varadarajan, J. agreed has laid the legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above case, this Court as we have pointed out earlier, quashed the proceedings on the ground that the allegations made in the complaint did not constitute an offence within the ambit of the provisions of the Act under which the respondents/accused therein were prosecuted. 100. Fazal Ali, J. reiterating his earlier view in Smt. Nagawwa v. Veer anna Shivalingappa Konjalgi and Ors. [1976] SCR 123 wherein he has given certain category of cases in which an order of the Magistrate issuing process against the accused can be quashed or set aside and further stating that the same principle laid down in that decision would apply mutatis mutandis to a criminal complaint also, has explained the position of law in Pratibha Rani v. Suraj Kumar and Anr. 1985 CriLJ 817 as follows: It is well settled by a long course of decisions of this Court that for the purpose of exercising its power Under Section 482 Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. 101. Speaking for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the FIR, do not constitute an offence and that it depends upon the facts and circumstances of each particular case. 105. 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 extra-ordinary 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complaint. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code-namely Under Sections 182 or 211 or 500 besides becoming liable to be sued for damages. 108. Reverting to the present case, the allegations made in the complaint, in our considered opinion, do clearly constitute a cognizable offence justifying the registration of a case and an investigation thereon and this case does not fall under any one of the categories of cases formulated above calling for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself. 109. It was then urged by Mr. Parasaran with a considerable force and insistence that the entire proceedings against Ch. Bhajan La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the contention that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that Dharam Pal has laid the complaint only on account of his personal animosity, that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. In this connection, the following view expressed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar and Ors. 1987 CriLJ 793 may be referred to. It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant. Beyond the above, we do not wish to add anything more. 112. It was again contended that mala fides are writ large on the extra-ordinary interest evinced by the police officers and the hasty direction given by the S.P. Needless to say that the question of mala fide exercise of power will assume significance only if an authority acts for unauthorised purpose. The proper test to be applied in such a case is as to what is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y before the Justice Jaswant Commission. Be that as it may, we are not inclined to give any finding one way or other merely on the report of the Justice Jaswant Singh Commission by taking judicial notice of the same. 117. During the course of the hearing of this appeal as we have entertained a doubt as to the validity of the statutory power of the Inspector of Police, the third appellant herein who is not a designated officer to investigate this case registered Under Section 5(2) of the Act (presumably Section 5(1)(e) read with Section 5(2) and Under Sections 161 and 165 IPC in the teeth of the mandatory provisions of Section 5A and in the light of the observations of this Court made in H.N. Rishbud and Inder Singh v. The State of Delhi 1955 CriLJ 526 and The State of Madhya Pradesh v. Mubarak Ali [1959] 2 SCR 201, all the learned Counsel addressed their arguments on this point at the instance of this Court. Though initially, it was submitted on behalf of the State (the first appellant herein) that the order of the S.P. dated 21.11.1987 directing the Inspector to investigate the case would fall within the purview of the provisos to Section 5A, subsequently two Government orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In A.C. Sharma v. Delhi Administration 1973 CriLJ 902, Dua, J said that the scheme of this provision is for effectively achieving the object of successful investigation into the serious offences mentioned in Section 5 of the Act without unreasonably exposing the public servant concerned to frivolous and vexatious proceedings. A Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak 1984 CriLJ 647 has observed that Section 5A is a safeguard against investigation .of offences by public servants, by petty or lower rank police officer. 120. According to Section 5A, notwithstanding anything contained in the Code, no police officer below the rank specified in Clauses (a) to (d) of Section 5A(1), shall investigate any offence punishable Under Sections 161, 165 or 165A of the IPC or Under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefore without a warrant. There are two provisos to that section. As per the first proviso, if a police officer not below the rank of an Inspector of Police is authorised by the State Government, either by general or special order, he may investigate any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation. 124. Coming to the facts of the present case under consideration, the investigation did not proceed and could not be proceeded with, since the High Court by an interlocutory order restrained the investigation even at the initial stage, i.e. on the date when Rule Nisi was issued in the Writ Petition. therefore, it is the appropriate stage for examination of the question as to whether the necessary requirements contemplated Under Section 5A(1) in permitting the Inspector of Police, are strictly complied with or not. 125. For the proper understanding of the reasoning which we would like to give touching the question of the validity of the authority of the third appellant, we would like to reproduce the Government order dated 26th July 1975 which reads as follows: HARYANA GOVERNMENT HOME DEPARTMENT ORDER No. 4816-3H-75/22965 The 26 th July 1975 Conferred by the first proviso to Sub-section (1) of Section 5A of the Prevention of Corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king permission Under Section 5A passed the order reading permission granted . Subba Rao, J. as he then was while speaking for the Bench disapproved such casual order and expressed that the Magistrate did not realise the significance of this order giving permission but only mechanically issued the order and stated thus: ...in a case where an officer rather than the designated officer, seeks to make an investigation, he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. 131. Hegde, J in S.N. Bose's case following the maxim in Mubarak Ali's case has expressed his opinion in the following words: It is surprising that even after this Court pointed out the significance of Section 5A in several decisions there are still some Magistrates and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court. 132. The conspectus of the above decisions clearly that the granting of permission Under Section 5A authorising an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered Under Section 5(2) but also Under Section 161 and 165 IPC. The Government Order authorises the Inspector General of Police of Haryana state to investigate only the offences falling Under Section 5 of the Act. therefore, the SHO who has taken up the investigation of the offences inclusive of those Under Section 161 and 165 IPC is not at all clothed with any authority to investigate these two offences, registered under the IPC, apart from the offence Under Section 5(2) of the Act. When Mr. Sachhar was confronted with this legal issue, he tried to extricate himself from this situation saying that the prosecution would approach the Magistrate of the first class for obtaining an order Under Section 5A(1) authorising SHO to investigate the offences under the provisions of the IPC. However, as the question relating to the legal authority of the SHO is raised even at this initial stage, we feel that it would be proper and also desirable that the investigation, if at 'all to be proceeded with in the opinion of the State Government, should proceed only on the basis of a valid order in strict compliance with the mandatory provision of Section 5A(1). 135. From the above discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judges should not be countenanced because if such observations, especially in the context of this case receive judicial recognition, it will lead only to the catastrophe of our democratic system to the detriment of the welfare of the country and if such observations are accepted then every successor Government should bury its head like an Ostrich thereby freely allowing the malfeasance and misfeasance of the former Government to go un-noticed, un-rectified and the offenders unpunished. According to them there is absolutely no material for holding that there was any campaign of vilification for political gain based on personal animus by the successor Government as against the outgoing Government, particularly when the criminal proceedings are initiated by an individual. 138. To buttress their submission, they relied on the following decisions dealing with similar contentions attacking the institution of criminal proceedings characterising them as the outcome of political vendetta. Those observations being P.V. Jagannath Rao and Ors. v. State of Orissa and Ors. [1968] 3 SCR 789 ; Krishna Ballabh Sahay and Ors. v. Commissioner of Enquiry and Ors. 1969 CriLJ 520 ; Sheonandan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erious and destructive consequences that may follow therefrom. Hence we are constrained to express our disapproval since the text, tenor and tone of the above observations leave us with the feeling that such misplaced sympathy indicated therein appears to have considerably weighed with the learned Judges in taking the extreme step in quashing the First Information Report. We do not like to make any more comment except saying that as we have pointed out in our exordial note, in our democratic polity where the 'Rule of Law' regions no one-however highly placed he may be-can claim immunity, much-less absolute immunity from the Law, but he is always under the Law. 144. We set aside the judgment of the High Court quashing the First Information Report as not being legally and factually sustainable in law for the reasons aforementioned; but, however, we quash the commencement as well as the entire investigation, if any, so far done for the reasons given by us in the instant judgment on the ground that the third appellant (SHO) is not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of Section 5A(1) of the Prevention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-cognizable offence under the order of a Magistrate having power to try such noncognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to two offences to which atleast one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officers can investigate such offences with the same powers as he has while investigating a cognizable offence. [279H; 280A-B] 4. The core of the Sections 156, 157 and 159 of the Code of Criminal Procedure 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 investigation agencies over w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; referred to.Webster's Third International Dictionary; Corpus Juris Secondum, Vol. 83 pp. 923, 927; Words and Phrases, (Permanent Edition 40A) pp. 590, 591; referred to. 6. The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide myriad kinds of cases wherein such power should be exercised: (a) 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; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors., [1988] 4 SCC 655; Talab Haji Hussain v. Madhukar Purshottam Mondekar and Anr., [1958] SCR 1226; L.U. Jadhav v. Shankarrao Abasaheb Pawar, [1983] 4 SCC 231; J.P. Sharma v. Vinod KumarJain and Ors., [1986] 3 SCC 67; State of U.P.v.V.R.K. Srivastava and Anr., [1989] 4 SCC 59; Emperor v. Khwaja Nazir Ahmad, AIR 1945 P.C. 18; referred to. 9.1. The entire matter is only at a premature stage and the investigation has not proceeded with except some preliminary effort taken on the date of the registration of the case. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present avail-. able. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the SHO to investigate the serious allegations, levelled against a former Chief Minister and a Minister in the Cabinet of the Central Government on the face of the registration of the case. However, this conduct of the SP can never serve as a ground for quashing the FIR. [298C-E] Sirajuddin v. State of Madras, [1970] 3 SCR 931; The State of Uttar Pradesh v. Bhagwant Kishore Joshi, [1964] 3 SCR 71; relied on. 11.1. A police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the First proviso can take up the investigation of an offence referred to in clause (e) of Section 5(1) of the Prevention of Corruption Act, only on a separate and independent order of a police officer not below the rank of a Superintendent of Police. A strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression further provided occurring in the second proviso. Thus, investigation by the designat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the S.P. in directing the SHe to investigate and as such the order of the S.P. is directly in violation of the dictum laid down by this Court in several decisions. The third appellant, SHO is not clothed with the requisite legal authority within the meaning of the second provision of Section 5A(1) of the Act to investigate the offence under clause (e) of Section 5(1) of the Act. [315E-F] H.N. Rishbud and Inder Singh v. The State of Delhi, [1955] 1 SCR 1150; The State of Madhya Pradesh v. Mubarak Ali, [1959] Supp. 2 SCR 201; A.C. Sharma v. Delhi Administration, [1973] 3 SCR 477; A.R. Antulay v. R.S. Nayak, [1984] 2 SCR 914; Major E.G. Barsay v. The State of Bombay, [1962] 2 SCR 195; Munna Lal v. State of Uttar Pradesh, [1964] 3 SCR 88; S.N. Bose v. State of Bihar, [1968] 3 SCR 563; Muni Lal v. Delhi Administration, [1971] 2 SCC 48; Khandu Sonu Dhobi Anr. v. State of Maharashtra, [1972] 3 SCR 510; relied on. 12. The Government order authorised the Inspector General of Police to investigate only the offences failing under Section 5 of the Act. Therefore, the SHO who has taken up the investigation of the offences inclusive of those under Section 161 and 165 IPC is not at all cloth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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