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2001 DIGILAW 131 (AP)

D. Rajeshwar Rao v. Government Of A. P.

2001-02-09

Y.V.NARAYANA

body2001
Y. V. NARAYANA, J. ( 1 ) THE scope of judicial review under Article 226 of the Constitution of India seeking to quash the First Information Report ( fir for short) falls for consideration in this Writ Petition. The petitioner has invoked the extraordinary jurisdiction of this Court to quash the FIR in Crime No. 95/99 dated 5-5-1999 of Matwada Police Station (Warangal District), registered for offences under Sections 406, 417 and 420 of the Indian Penal Code. ( 2 ) THE factual matrix leading to the filing of the present Writ Petition is set out as hereunder :-- The petitioner, second respondent and one Mr. B. Ramesh constitute a registered partnership firm under the name and style of m/s. Padmavathi Engineering Company dealing in purchase and sale of electrical motors, P. V. C. Pipes, Oil Engines, G1 Pipes, Suguna Motors and other brand engines. In accordance with the terms and conditions of the partnership firm, the partnership business was being run and the 2nd respondent is authorised to sign cheques along with the petitioner. Since the 2nd respondent tried to take law into his own hands with the active assistance of the police, the petitioner was constrained to file W. P. No. 23791 of 1999 for a direction to the Sub-Inspector of Police, Matwada Police Station (first respondent herein) not to harass the petitioner in connection with the business disputes. The other partners in turn lodged a complaint with the Matwada Police Station against the petitioner and the same has been registered as Crime No. 95/1999 for offences under Sections 406, 417 and 420, IPC. The petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure seeking to quash the FIR and it was dismissed by this Court holding that the petition seeking to quash an FIR is not maintainable. Hence the petitioner has invoked Article 226 of the Constitution of India seeking to quash the FIR in Crime No. 95/99 of Matwada Police Station dated 5-5-1999. ( 3 ) SRI P. Venugopal, the learned counsel for the petitioner contend1ed that by virtue of the provisions of the Indian Partnership Act no crime has been made out against the petitioner. Hence the petitioner has invoked Article 226 of the Constitution of India seeking to quash the FIR in Crime No. 95/99 of Matwada Police Station dated 5-5-1999. ( 3 ) SRI P. Venugopal, the learned counsel for the petitioner contend1ed that by virtue of the provisions of the Indian Partnership Act no crime has been made out against the petitioner. It is his contention that none of the offences mentioned in the FIR against the petitioner is maintainable having regard to the provisions of the Indian Partnership Act and there is not specific averment of entrustment to make out a case under Section 406, IPC and at best only a civil suit for recovery of money is maintainable. Since this Court has dismissed quash proceedings under Section 482 of the Code of Criminal Procedure holding that an FIR cannot be quashed, the petitioner is constrained to invoke the jurisdiction under Article 226 of the Constitution of India. ( 4 ) SEPARATE counter-affidavits were filed by both the respondents. The 1st respondent-Sub-Inspector of Police, Matwada Police Station has stated in his counter-affidavit that the 2nd respondent, who is a partner of the firm along with the other partners, lodged a complaint on 5-5-1999 in the Matwada Police Station and it was registered as Crime No. 95/1999 under Sections 406, 417 and 420 of the Indian Penal Code and the case is under investigation. During the course of investigation it is revealed that earlier to the lodging of the complaint a Panchayat was held between the partners and the petitioner agreed to pay back Rs. 17 lakhs which he has misappropriated by diverting the amounts of the firm to his personal account. Apart from this, as a result of investigation it came to light that the petitioner without knowledge and consent of the other partners of the firm, opened a separate bank account in the name of the firm in Kakateeya Grameena Bank, Banapuram with apparent collusion with the Bank Manager contrary to the rules of the Bank governing opening/operating of the account of a partnership firm. It is further contended that the petitioner diverted the funds of the firm which were paid by I. T. D. A. Officials at Eturu Nagaram and misappropriated the funds. Hence the role of the officials also needs to be examined. It is further contended that the petitioner diverted the funds of the firm which were paid by I. T. D. A. Officials at Eturu Nagaram and misappropriated the funds. Hence the role of the officials also needs to be examined. It also came to light that the petitioner has fabricated and issued duplicate invoices in the name of the firm. These are all under investigation and ultimately the Bank and the Government officials conduct has to be investigated into. By quashing the FIR the erring officials of the Bank and the Government will go scot free without facing trial. Hence, on the facts and circumstances of the case it is not a fit case for quashing the FIR under Article 226 of the Constitution of India. ( 5 ) THE 2nd respondent in his counter-affidavit supported the stand taken by the first respondent. ( 6 ) SRI P. Shivakumar, the learned counsel for the 2nd respondent has contended that in the complaint there is a specific averment regarding entrustment. He drew the attention of this Court to the portion of the complaint wherein it is stated "we all the three partners entrusted the work to Sri D. Rajeswara Rao, by taking advantage of my absence and inactive role in the firm and confidence reposed by both of us in him, he started misappropriation of funds of our firm. " He further contended that the act of the petitioner in opening a separate account in Kakateeya Grameena Bank without the knowledge of the other partners would constitute fraud and breach of trust. ( 7 ) ON the basis of the rival submissions, the only question that falls for consideration in this Writ Petition is whether the FIR in Crime No. 95/99 dated 5-5-1999 of Matwada Police Station is liable to be quashed exercising the jurisdiction under Article 226 of the Constitution of India. ( 8 ) IN criminal jurisprudence First Information Report (FIR) sets criminal law into motion and from the point of investigating authority they investigate into the case and obtain information about the alleged criminal activity so as to enable them to bring the guilty to book. Apart from this, the power of investigation is exclusively the domain of the police till the Magistrate takes cognizance of the matter. The Courts are reluctant to interfere with the investigation by the Police. Apart from this, the power of investigation is exclusively the domain of the police till the Magistrate takes cognizance of the matter. The Courts are reluctant to interfere with the investigation by the Police. The rationale underlying the legal policy of not interfering with the investigation is that the functions of judiciary and police are complementary and not overlapping and the Court s function begins when a charge-sheet is preferred before it and not until then. In exercising the jurisdiction under Article 226 of the Constitution of India the Courts must guard against the risk of interfering with the investigation of offences which, if allowed to proceed, would bring the offenders to book and therefore judicial review under Article 226 of the Constitution of India to quash the FIR cannot be exercised in a routine and pedantic manner. The Courts have to look into the facts and circumstances of each case and only where there is a gross abuse of power the Courts shall interfere and pass appropriate orders. The Apex Court in Bhagwant Singh v. Commissioner of Police, 1985 Cri LJ 1521 : ( AIR 1985 SC 1285 ) has categorically ruled that the First Informant should be heard before the Magistrate drops the case on the report of the Police. Dealing with Section 154 (1) of the Code of Criminal Procedure (Act 2 of 1974) the Apex Court in State of Haryana v. Bhajanlal, AIR 1992 SC 604 : (1992 Cri LJ 527) has held as follows :"the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154 (1) the said Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. " ( 9 ) THUS the Supreme Court has laid stress on two conditions, viz. , firstly the FIR must disclose cognizable offence as required under Section 157 of the Code of Criminal Procedure and secondly once it discloses a cognizable offence the police are bound to register the case and investigate the same. " ( 9 ) THUS the Supreme Court has laid stress on two conditions, viz. , firstly the FIR must disclose cognizable offence as required under Section 157 of the Code of Criminal Procedure and secondly once it discloses a cognizable offence the police are bound to register the case and investigate the same. Dealing with the role of police in investigation it was held in the above said case as follows at Page 543; of Cri LJ :"the investigation of a cognizable 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 as aforementioned. Indeed, 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 authorized 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 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 Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of divine Power which no authority on earth can enjoy. " ( 10 ) IN a recent judgment the Supreme Court had an occasion to consider the scope of judicial review under Article 226 of the Constitution of India for quashing criminal complaint. Any recognition of such power will be tantamount to recognition of divine Power which no authority on earth can enjoy. " ( 10 ) IN a recent judgment the Supreme Court had an occasion to consider the scope of judicial review under Article 226 of the Constitution of India for quashing criminal complaint. The Apex Court in Mahavir Prashad Gupta v. State of NCT of Delhi, (2000) 8 SCC 115 : (2000 Cri LJ 4665) has held that power under Article 226 of the Constitution of India should be exercised with circumspection and only in the rarest of the rare cases such as where the complaint does not disclose any offence the Courts can interfere and quash the same. The Apex Court has held as follows :"the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. One such case would be when the complaint itself does not disclose any offence. The present is not such a case. The Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint or as to whether the allegations in the complaint are likely to be established by evidence or not. " ( 11 ) IN circumspection of the entire case law on the subject it emerges that each case has to be looked into based on the facts and circumstances of the case and then only the High Court can exercise its jurisdiction under Article 226 of the Constitution of India. In the present case the averments in the counter-affidavits reveal that the petitioner has opened a separate bank account and he diverted the funds of the firm which were paid by I. T. D. A. Officials. It would appear that the role of officials of the bank and the Government needs to bed investigated into. On the face of such revelation it is not a fit case for exercising the jurisdiction of this Court under Article 226 of the Constitution of India treating it as "rarest of the rare cases" such as where the complaint does not disclose any offence. This Court is of the opinion that it is not a fit case for exercising jurisdiction under Article 226 of the Constitution of India for quashing the FIR. This Court is of the opinion that it is not a fit case for exercising jurisdiction under Article 226 of the Constitution of India for quashing the FIR. The Writ Petition is devoid of merits and is accordingly dismissed. No order as to costs. Petition dismissed.