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Madras High Court · body

1985 DIGILAW 525 (MAD)

Johny Joseph v. State of Kerala

1985-12-20

PADMANABHAN

body1985
ORDER 1. Second accused in Crime No.187/ 85 of the Aranmula Police Station, pending before the Judicial First Class Magistrate, Pathanamthitta is the petitioner. The prayer is to quash the proceedings invoking the inherent power of this Court. Second respondent is the de facto complaint and third respondent is the first accused in that case. First respondent is the State of Kerala. 2. Alleging commission of an offence punishable under section 409 read with section 34, Indian Penal Code, the 2nd respondent filed a private complaint before the Judicial First Class Magistrate, Pathanamthitta against the third respondent and petitioner. Husband of the 2nd respondent is employed in Tehran. On the basis of the visa sent by her husband and valid up to 6.1.1984 she wanted to go to Tehran. The gist of her allegations in the complaint are these. Third respondent, falsely claiming to be an authorised travel agent, approached her with an offer to arrange ticket and received Rs.6,844/- on 7.10.1983. Instead of arranging ticket, he temporarily misappropriated the amount and converted it to his own use after falsely informing her that ticket has been arranged. Ticket was arranged only on 28.12.1983 and hence she was not able to undertake the travel. Therefore the ticket was returned. The same was entrusted to the third respondent for getting refund but he said that refund could be had only through the petitioner through whom third respondent arranged the ticket. On 12.4.1984 the ticket was entrusted to the petitioner. After getting refund petitioner and third respondent, in furtherance of their common intention, misappropriated the amount and converted the same to their own use at first on the false pretext that refund has not been received and thereafter stating that the amount has been credited in the name of the third respondent. Petitioner is also the Director of a travel agency. The Magistrate forwarded the complaint to the police under section 156(3) of the Code of Criminal Procedure for investigation. Accordingly the case was registered and it is being investigated. Petitioner was arrested and produced before the Magistrate and he is on interim bail granted by the Magistrate. 3. The Magistrate has not taken cognizance of the offence and without doing so he ordered police investigation under section 156(3) of the Code. Accordingly the case was registered and it is being investigated. Petitioner was arrested and produced before the Magistrate and he is on interim bail granted by the Magistrate. 3. The Magistrate has not taken cognizance of the offence and without doing so he ordered police investigation under section 156(3) of the Code. Now the question of taking cognizance may arise only when the report of investigation is filed under section 173(2) of the Code. Therefore the decisions reported in Sub-Divisional Magistrate, Delhi v. Ram Kali Magistrate, Delhi v. Ram Kali (1968) 1 S.C.J. 603: (1968) MLJ. (Crl.) 251: A.I.R. 1968 S.C. 1 and Barja v. Meethal Ummi Barja v. Meethal Ummi (1985) K.L.T. 532, pointed out by the Counsel for the petitioner do not arise for consideration at all. 4. Now the position is that as ordered by the Magistrate under section 156(3) a case has been registered and it is being investigated. The only question is whether this Court will be justified in interfering with the investigation in the exercise of inherent power. Investigation is the province of the police whereas enquiry and trial are within the powers of the Court. In a case instituted on a police report the Court gets jurisdiction to try the offender only when the final report is filed and cognizance taken. Till then it is the duty of the police to collect materials by investigation and decide whether the materials are sufficient to charge-sheet the accused to stand trial. When once that discretion is exercised and the accused is either charge-sheeted or a refer report is filed the Court gets jurisdiction to assess the correctness of the discretion. The decision in (1985) K.L.T. 532, becomes relevant only at that stage. If the accused is charge-sheeted, before taking cognizance on the police report the Court can apply its mind to decide whether the charge-sheet discloses the offence or offences alleged. So also if it is a refer report the Court can decide whether further investigation has to be ordered or whether cognizance has to be taken in other methods provided by law. That does not mean that the High Court is powerless in interfering with the police investigation in appropriate cases in the exercise of its inherent power. So also if it is a refer report the Court can decide whether further investigation has to be ordered or whether cognizance has to be taken in other methods provided by law. That does not mean that the High Court is powerless in interfering with the police investigation in appropriate cases in the exercise of its inherent power. President, Hindustan Motors Ltd. v. Joseph President, Hindustan Motors Ltd. v. Joseph (1976) K.L.T. 36, is authority for the petition that in the exercise of the inherent power the High Court can interfere with the investigation on a First Information Report, the allegations of which even if taken at their face value and accepted in their entirety, do not constitute the offence alleged because in such cases no question of appreciating the evidence arises. In such a case an F.I.R. could be quashed because investigation on the basis of such an F.I.R. which does not disclose an offence will be an abuse of powers of the police and interference may be required to secure the ends of justice. But such interference with the investigation must be with due regard to the fact that investigation is the province of the police in which judicial interference will have to be avoided except when it. is absolutely necessary in the ends of justice. It has also to be borne in mind that the investigating agency is having the full discretion to assess the materials and decide whether they are sufficient to proceed with investigation or charge-sheet the accused before Court. As held in E.S. Mills Shri Virendra Kumar v. Rajiv Poddar E.S. Mills Shri Virendra Kumar v. Rajiv Poddar (1985) Crl.L.J. 1858: A.I.R. 1985 S.C. 1668, save in exceptional cases where non-interference would result in miscarriage of justice, the Court and judicial process should not interfere at the stage of investigation of offences. Interference in the exercise of inherent power cannot be indiscriminate. As observed in Vinod Kumar v. State Vinod Kumar v. State A.I.R. 1982 P. 8 H. 372, the following may be some of the instances where interference may be justified taking into account the facts and circumstances of each case. Interference in the exercise of inherent power cannot be indiscriminate. As observed in Vinod Kumar v. State Vinod Kumar v. State A.I.R. 1982 P. 8 H. 372, the following may be some of the instances where interference may be justified taking into account the facts and circumstances of each case. (1) When the F.I.R., even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offence, (2) When the materials subsequently collected in the course of investigation further disclose no such cognizable offence at all, (3) when the continuation of such investigation would amount to an abuse of power by the police thus necessitating interference in the ends of justice and (4) when the power of investigation is exercised mala fide. 5. The contention that the F.I.R. discloses only a contractual obligation and as such only a civil liability is devoid of merit. If the allegations in the complaint and the F.I.R. are taken as correct in their face value it cannot now be said that the offence alleged is not disclosed. So also it may not be possible at this stage to say that common intention on the part of the accused is not evident from the allegations. The correctness of the allegations is being investigated by a competent agency. There is nothing to show that investigation is mala fide or that the materials collected by the investigation rule out the possibility of the crime. 6. There is no point in saying that no offence is disclosed by the allegations. It is for the investigating agency to collect materials in order to decide whether the accused are to be charge-sheeted or not. It has become an unhealthy practice to invoke the inherent powers of the High Court in place and out of place. Admission of the petition and an interim order of stay ordinarily means that the investigation will be held up for years. By long lapse of time the possible evidence will be lost and culprits escape the provisions. of law. That seems to be the main object of those who are seeking the inherent powers in such cases. This is also a typical example of such an attempt. 7. The petition is without any merit and it is hereby dismissed. Petition dismissed.