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2003 DIGILAW 193 (ALL)

ATIQUE AHMAD v. STATE OF UTTAR PRADESH

2003-01-29

K.K.MISRA, R.K.DASH

body2003
R. K. DASH, J. ( 1 ) FACTUAL aspects of all these cases being almost similar, they were heard analogously and are being disposed of by this common judgment. ( 2 ) FOR better appreciation, we would refer to the allegations made in the F. I. R. on the basis of which case crime No. 412 of 2002 has been registered at Dhoomanganj P. S. , District Allahabad. Smt. Geeta Singh, Trade Tax Officer, Sector-IV, Allahabad lodged the report alleging that in the year 1993-94 M/s. Atique Enterprises, Kasari Masari, Allahabad lifted scrap iron weighing 110 Mt. Tons from Subedarganj Depot of Northern Railway on depositing rupees 72,600/- as earnest money without getting the said firm registered in the State Trade Tax department. On this allegation, she moved the police and prayed for taking appropriate legal action and on her complaint, the aforementioned case was registered against the persons named therein under Section 420, I. P. C. ( 3 ) THE petitioner, by filing the present petition, has sought for quashing of the impugned F. I. R. in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India and to restrain the police from taking the petitioner to judicial custody who has been languishing in the jail in some other cases. ( 4 ) COUNTER-AFFIDAVITS sworn to by the informant Smt. Geeta Singh as well as Ram Adhar Rai, the investigating officer are filed. ( 5 ) FIRST, we will make brief reference to the counter-affidavit of the informant since on her report police sprang into action and registered the aforesaid case. It is stated in the affidavit that the firm M/s. Atique Enterprises, Allahabad does not exist at all and even its address is not complete and correct. Moreover such firm is not registered with the trade tax department under the U. P. Trade Tax Act. However, in the name of such firm purchase of scrap iron is being made from the Railway without paying any tax to the State. She has further stated that one of the eligibility criteria for a firm to participate in the auction held by the Railway is that it must have obtained trade licence as well as trade tax number and also central sales tax number. She has further stated that one of the eligibility criteria for a firm to participate in the auction held by the Railway is that it must have obtained trade licence as well as trade tax number and also central sales tax number. In the case on hand, M/s. Atique Enterprises without satisfying such conditions, all the time took part in the auction and purchased scrap iron from the depot of the Northern Railway without paying any tax to the State. ( 6 ) IN the other affidavit filed by the investigating officer, the facts narrated in the counter-affidavit of the informant are almost reiterated and nothing more have been pleaded for determining the question in issue. ( 7 ) IN sum and substance, the case of the prosecution, as borne out from the F. I. R. and the two counter-affidavits, is that the petitioner, proprietor of the firm M/s. Atique Enterprises without getting the firm registered under the U. P. Trade Tax Act, took part in the auction of scrap iron held by the Northern Railway and purchased the same without paying any tax to the State. In the above back-ground, the question arises that even assuming the prosecution allegation as true, whether on such accusation offence of cheating punishable under Section 420, I. P. C. is made out in order to enable the police to investigate into the said offence. ( 8 ) SRI S. M. A. Kazmi, counsel for the petitioner contended that the present case is a glaring example of police atrocities, inas- much as, the impugned FIR which does not disclose commission of any offence, more so any cognizable offence, the local police being politically influenced registered the case with oblique motive to put him behind the bar for his having opposed the parties in power in many matters. Sri Kazmi further urged that exercise of power of investigation by the police as provided in the Code of Criminal Procedure is dependent upon the information disclosing commission of a cognizable offence. Sri Kazmi further urged that exercise of power of investigation by the police as provided in the Code of Criminal Procedure is dependent upon the information disclosing commission of a cognizable offence. The Apex Court in a series of judicial pronouncements has laid down that if the police transgress their power as enjoined upon them by law and proceed with the investigation into the allegation not disclosing any cognizable offence, it would be just and proper for the High Court to restrain the police from misusing their legal power in exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution or inherent power under Section 482, Cr. P. C. In the case on hand, the impugned FIR which does not reveal commission of any offence should be quashed and the police be restrained to arrest the petitioner, otherwise the petitioner will suffer irreparably at their hands. ( 9 ) CONTROVERTING the aforesaid submission, learned A. G. A. would urge that the police who are invested with the statutory right of investigation should be allowed to perform their duties and investigate into the allegation made in the impugned FIR and as held by the Supreme Court that sparingly and in the rarest of rare cases, the High Court can interfere with the investigation and this case which does not fall within that execution, the police should be allowed to perform their statutory function, investigate the case and bring the petitioner to book. ( 10 ) ATIQUE Ahmad - a name known to almost each and every individual of Allahabad as because he is their elected representative to the Legislative Assembly - to his political opponents, police and other officials he is a hardened criminal involved in several gruesome offences. It is not astonishing that persons having criminal background and large number of cases to their credit have made their easy access to politics and on being elected by their muscle and money power are occupying high position in the administration. Yesterdays criminals lodged in the jail for their involvement in heinous crimes and persons living on alms have become leaders of the people and have accumulated vast wealth. Thus, the whole political atmosphere has been polluted. We, however, do not like to discuss anything more in this context since judicial propriety restrains us to do so. Yesterdays criminals lodged in the jail for their involvement in heinous crimes and persons living on alms have become leaders of the people and have accumulated vast wealth. Thus, the whole political atmosphere has been polluted. We, however, do not like to discuss anything more in this context since judicial propriety restrains us to do so. Even assuming that the petitioner is a criminal turned politician that does not mean that he has lost all his rights guaranteed by the Constitution and even though he is not involved in any cognizable offence, the police as of right can lodge him behind the prison bar. Looking to the F. I. R. , it is to be ascertained whether offence punishable under Section 420, I. P. C. is deciphered from the allegations made therein authorising the police to have the same investigated in accordance with law. As the said provision goes, a person is liable for punishment if he cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. It is the informants own case that the petitioner took part in the auction held by the Northern Railway and purchased scrap iron without paying any tax to the State. This being the only allegation, in our considered opinion, the petitioner cannot be said to have cheated or dishonestly induced either the Northern Railway or the State to deliver him scrap iron which he purchased in auction. In that view of the matter, the question that crops up for consideration is whether the police still have any power to proceed with the investigation even though FIR discloses no offence whatsoever. ( 11 ) JUDICIAL opinion is unanimous that if the FIR discloses a cognizable offence, the police as of right shall investigate the same and bring the offender to book and the Court lacks jurisdiction to encroach upon exercise of their such right. ( 11 ) JUDICIAL opinion is unanimous that if the FIR discloses a cognizable offence, the police as of right shall investigate the same and bring the offender to book and the Court lacks jurisdiction to encroach upon exercise of their such right. Reference in this context may be made to Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 : (1945 (46) Cri LJ 413) where Privy Council observed thus :"in their Lordships opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible 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 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then. " ( 12 ) THE police, however, do have unbridled power of investigation. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then. " ( 12 ) THE police, however, do have unbridled power of investigation. Their right to investigation conferred by the Statute is subject to limitation that if the materials appearing in the F. I. R. do not disclose any offence, no investigation should normally be permitted and as pointed out by the Privy Council in Khwaja Nazir Ahmad (supra) :"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. . . . . . . . . . " ( 13 ) REFERENCE may also be made to State of West Bengal v. Swapan Kumar Guha, (1982) 1 SCC 561 : (1982 Cri LJ 819), where the Apex Court held (Para 64) :"in my opinion, the legal position is well settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. The observations of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted, make this position abundantly clear. The propositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier noted, are based on sound principles of justice. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interest of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence and for bringing the offender to book. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. . . . . . " ( 14 ) IN the celebrated judgment in the case of State of Haryana v. Bhajan Lal, 1992 (Supp) 1 SCC 335 : (1992 Cri LJ 527) Para 108), the Apex Court in concluding paragraph (102) observed thus :"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and the principle 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 a case 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, thought it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by the 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 fides 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. " ( 15 ) IN view of the well settled principle of law as discussed above and on a conspectus of the facts appearing in the impugned FIR, we are of the considered opinion that since the allegations do not reveal commission of any offence, the Court would be well within its jurisdiction to interdict the investigation in order to secure ends of justice. It is, accordingly, so ordered. Resultantly, the impugned F. I. Rs. in all the case mentioned above are quashed. It is, accordingly, so ordered. Resultantly, the impugned F. I. Rs. in all the case mentioned above are quashed. ( 16 ) THE writ petitions thus succeed and are allowed. However, there shall be no order as to costs. Petitions allowed. .