Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 590 (RAJ)

Nathu Ram v. State of Raj.

2006-02-20

GOPAL KRISHAN VYAS

body2006
Honble VYAS, J.–On the allegation that the petitioners got into scuffle with two ladies viz., Sarla and Shanti and belaboured them with hands, farsi and stick, first information report was registered by the SHO, Police Station, Khunkhuna for offences under Sections 447 and 323, I.P.C. Later on, during the course of investigation, as a result of examination of injuries, Sections 307 and 325, I.P.C. were added. By filing the present petition under Section 482, Cr.P.C. the petitioners seek to raise hypothetical controversy that offences under Sections 447 and 323, I.P.C. are bailable offences and as a result of addition of Sections 307 and 325, I.P.C. the case of the petitioners came to fall in the category of non-bailable offences and as such valuable right of the petitioners to bail has been divested by the police by adding non-bailable offence to the investigation. (2). Learned counsel for the petitioner submits that there was only one fracture on the hand of injured Shanti but the police have, without going into the nature of the injury, rushed to add offences under Sections 307 and 325, IPC and they want to arrest the petitioners and other co-accused. It is contended that without any evidence as to the ingredients for making out a case under Section 307, I.P.C., only because in the FIR Section 307, I.P.C. has been added, the petitioners have lost their right to bail despite the fact that other offences for which the petitioners have been booked are bailable offences. (3). Rhyming up the controversy, learned counsel for the petitioners submitted that out of 70% challan filed under Section 307, IPC, out of them, 60% cases are remanded at the stage of charge by the Judge concerned to the Magistrate Court and, thereby, 70% citizens of India, so embroiled, suffer incarceration only because a case under Section 307, IPC is registered against them. He submits that ultimately, at the trial, the offence under Section 307, IPC does not hold water before the law. He submits that ultimately, at the trial, the offence under Section 307, IPC does not hold water before the law. Hammering the discretion exercised by the police under the provisions of law, the learned counsel argues that the mighty State divests the citizens of their liberty with heavy handedness of law without any rhyme and reason which goes to fall short of bonafide in State action resulting in injustice to the poor people of India who, therefore, can only rush to the superior Courts to get justice; but, due to financial and economic problems many a time they are not in a position to do so. (4). Learned counsel for the petitioner contends that Section 157, Cr.P.C. has been enacted to keep the concerning Magistrate acquainted with the course of investigation and enabling him to supervise and suggest step to be taken in the investigation. He contends that investigation document is not the word of gospel admitting of no interference. Dealing with human problem, he submits, the State should be fair to both the parties and, therefore, the Courts of law may pass appropriate direction to the investigation authority to investigate the case in a particular correct line. He argues that the investigation agency is not above law and the Court has power to order the investigating agency to add or subtract the provisions of law. (5). Learned counsel for the petitioners next argued that the action of the investigation officer to convert the FIR of bailable offences into non-bailable offences has impaired the fundamental rights of the petitioners and, unless there are substantial changes in the facts and circumstances, the investigating officer has no power to add Section 307, IPC. He contended that in the present case only a fracture of radius bone has taken place and, only for that reason, the investigating officer added Section 307, IPC. during the course of investigation. (6). In support of his submission, learned counsel for the petitioners has drawn attention of this Court to the judgments of the Supreme Court Pala Singh & Another vs. State of Punjab, reported in AIR 1972 SC 2679 ; S.N. Sharma vs. Bipen Kumar Tiwari & others, AIR 1970 SC 786 ; Hafiz Mohamad Sani & Others vs. Emperor, AIR 1931 Patha 150. Learned counsel for the petitioner has also cited one judgment of the Punjab & Haryana High Court, reported in Saral Beopar Association Ltd. vs. State of Haryana & Another, 1970 Current Law Journal 720. (7). This is not only the legislative intent but a settled legal proposition based on catena of judgments of the superior Courts that investigating agency has power to investigate a matter without interference so long as such investigation is circumscribed by the limits laid down by the provisions of law. Under the scheme of the provisions of the Code of Criminal Procedure, the functions of the police and Court are neither overlapping nor designed to thwart the exercise of power by the police by interference at the hands of Court. Section 156(1) of the Code of Criminal Procedure empowers an officer-in-charge of a Police Station to investigate any cognizable case without the order of a Magistrate. Sub-section (2) of Section 156 lays down that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. Section 156, sub-section (3), however, gives power to any Magistrate empowered under Section 190 of the Code to order such an investigation in any case as mentioned in sub- section (1). While power has been conferred on the Magistrate under sub-section (3) of Section 156 of the Code, such power is only in respect of ordering investigation and not in respect of coming in way of an investigation. Even under Section 159, power is conferred upon the Magistrate where the police decide not to investigate the case. Thus the legislative check envisaged in the Code of Criminal Procedure goes only to confer power upon the Magistrate to direct the police to undertake investigation. (8). The High Court may, however, in exercise of jurisdiction under Section 482, Cr.P.C. step out to cut short an investigation where institution or continuance of proceedings against a person may amount to abuse of the process of the Court to secure the ends of justice. But, the controversy raised in the petition by the present petitioners is not with regard to illegality in the investigation. But, the controversy raised in the petition by the present petitioners is not with regard to illegality in the investigation. In the present petition, the petitioners seek to invoke inherent jurisdiction of this Court agitating a queer question, purportedly on law, whether by adding Section 307, I.P.C. by the investigating officer during the investigation against the petitioners, while the other offences alleged against the petitioners are bailable, petitioners have been prejudiced in the case and their liberty is at stake. (9). The grounds on which power under Section 482, Cr.P.C. can be exercised to quash the criminal proceedings are, if the allegations in the FIR or complaint, even though accepted and taken at their face value, do not prima facie constitute any offence, or where the allegations supported by evidence on record do not disclose commission of offence, or if there is an express legal bar to the institution and continuance of the proceedings. With a definite intention and meaning, the legislature has left the power with the investigating agency to carry on investigation without any hinderance or impediment in accordance with the provisions of law. This is without prejudice to the Courts power to interfere; and, when we refer to interference by the Court in the police investigation, it is only meant to be constructive interference for preventing abuse of the process of law and securing the ends of justice. The Code of Criminal Procedure, by itself, does not envisage police investigation with bridles in the hands of the Court. From the stage of lodging of the first information report till submission of the police report by the in-charge under Section 173(2), Cr.P.C. Thus the domain of investigation is well defined and demarcated which would, unless there is ground for interference in exercise of jurisdiction enshrined in the Court, not be trespassed by the Court on mere attempt at projecting a case of irregularity or illegality on flimsy and superficial grounds. It is more so because during the stage of investigation by the investigating agency the Court cannot embark upon an enquiry into the reliability or genuineness or otherwise of the allegations made in the FIR or complaint. It is more so because during the stage of investigation by the investigating agency the Court cannot embark upon an enquiry into the reliability or genuineness or otherwise of the allegations made in the FIR or complaint. In State of Haryana & Others vs. Bhajan Lal & Others (1992 Supp (1) SCC 335), their Lordships of the Supreme Court, while dealing with the power of the Court, touched upon the independence of the investigating agency as under: ``The sum and substance of the above deliberation results in a conclusion that 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 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 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 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. 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). 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). Thus, so long as the investigation proceeds in conformity with the mandates of the Code, the domain of investigation circumscribed by the provisions of Sections 156, 157 and 159 of the Code of Criminal Procedure, no attempt should be made by the Courts to stifle or impinge upon the progress of the investigation unless the salient features of illegality, irregularity, or malafide misuse of power by the police conscientiously persuades the Court to believe that personal liberty of the citizen is at stake at the hands of arbitrary exercise of power by the State machinery. It is in this context that, time and again, the principle is reiterated that only in the rarest of rare cases the High Court should interfere in the criminal proceedings launched or sought to be launched against a citizen. While heavily relying upon the earlier judgment in Bhajanlals case, in M. Narayandas vs. State of Karnataka & Others (2003(4) Crimes 159), the Supreme Court while quashing the High Court judgment, observed as under: ``.....it is settled law that the power to quash must be exercised very sparingly and with circumspection. It must be exercised in the rarest of rare cases. It is also settled law that 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. The Court also cannot inquire whether the allegations in the compliant are likely to be established or not. (11). The legal position in this regard is now well settled and the proposition goes to the extent that even if there is a breach of a mandatory provision relating to investigation, the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. Therefore, the position in law emerges that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. Therefore, the position in law emerges that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. The power under Section 482, Cr.P.C. can, of course, be exercised to prevent abuse of the process of court or otherwise to secure the ends of justice but such exercise of power must strictly be within the periphery of legislative intent. The claim of the petitioners in the case on hand to seek interference by this Court in the police investigation because non-bailable offence under Section 307, I.P.C. has been added by the in-charge of the concerned Police Station alongwith investigation of bailable offences does not lie in consonance with the principles of criminal justice to persuade this Court to believe that grave prejudice is caused to the petitioners on account of non-bailable offence having been added to the investigation. It is for the Court concerned to accept or not to accept the police report presented under Section 173 of the Code. But till then, the Court must not embark upon any enquiry as to the investigation carried on by the investigating officer unless there is express occasion for interference. The police report, in principle, is opinion formulated on the basis of investigation by the police and such opinion must neither be caused to be generated nor the formulation of the opinion be impeded by extraneous authority. (12). There is yet another aspect of the matter. On the apprehension of arrest by the police, the citizens have the right to move for anticipatory bail for the reasons available to them in the facts and circumstances. The contention of the petitioners that the requirements of law weigh over the poor citizens who have to knock the doors of superior Courts cannot be considered in the present petition under Section 482, Cr.P.C. because even in exercise of the inherent jurisdiction the Court must preserve with sanctity the self-restrictions embedded in the power. The domain of consideration by Courts is not unlimited. There are set demarcations and questions which are not left for judicial consideration must not be attempted to be answered by the Courts. What is suggested by learned counsel for the petitioners in the name of judicial activism is clear domain of legislature and this Court would refrain from entertaining any such plea. There are set demarcations and questions which are not left for judicial consideration must not be attempted to be answered by the Courts. What is suggested by learned counsel for the petitioners in the name of judicial activism is clear domain of legislature and this Court would refrain from entertaining any such plea. A constitutionally governed scheme of law with well defined three segments of the management of the State thrives with observance of self-restrictions and adherence to law. (13). In the result, I am not inclined to interfere in the matter. The petition moved under Section 482, Cr.P.C. is hereby dismissed.