A.P. Bhangale, J.@mdashRule. Rule, made returnable forthwith and taken up for final hearing by consent of respective parties.
2. By means of this petition, the petitioner is seeking to quash the investigation, charge-sheet and proceedings in SCC No. 17366/2006 pending on the file of learned Chief Judicial Magistrate, Nagpur.
3. Brief facts of the case filtering out unnecessary details, are as follows:
On 22.10.2005, the Assistant Police Inspector Shri M.R. Thakre, along with his staff was patrolling in the area of Hingna Police Station, District: Nagpur. While patrolling in the area, they received information that at Sarda Petrol Pump, Khapri, a Tanker bearing Registration number MH-31 AP 0086 containing Naphtha liquid, is being adulterated with petrol. Upon receiving such information, with the help of local police and Panchas, Sarda Petrol Pump, came to be raided by the Police. They found that Tanker No. MH 31 AP 0086 was parked near underground tank and with the aid of people, Naphtha was being adulterated with petrol in the underground tank. The liquid Naphtha 7000 liters was contained in the tanker and, approximately 2000 liters from the underground tank valued at Rs. 8,61,000/-, was seized. In the course of investigation, it was revealed that Naphtha liquid was brought by A-1 and A-2 from the factory of Ravindra Barai from Katol. Hence A-4 Ravindra Barai was also arrested. It was also revealed that A-2 Dinesh Sarda was in communication with A-4 Ravindra Barai, on telephone, for trading Naphta by means of tanker brought to the petrol pump for adulteration with petrol. Samples collected from tanker and underground tank were referred for Expert''s opinion which indicated adulteration. After FIR No. 3056 of 2005 was lodged at Hingna Police Station; Shri Sanjay Kumar Barkund, Deputy Superintendent of Police, Nagpur Division, Nagpur, investigated the matter and upon completion of investigation, submitted charge-sheet in the Court of learned JMFC Court No. 10 Nagpur. Thus, the petitioner herein along with three other accused, were charge-sheeted for offences punishable u/s 7 read with Section 3 of the Essential Commodities Act, 1955 (for short ''E.C. Act, 1955'') read further with Section 2 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1998 (for short ''Order, 1998'').
4. The petitioner questions the authority and power of Police to seize, arrest and initiate an action or to investigate in the allegations under Motor Spirit and High-Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 1998. The learned Counsel for the petitioner submitted that the entire action of the respondents is absolutely illegal, unwarranted and unauthorised as the investigation and the charge-sheet submitted, is unsustainable in law. The learned Counsel also contended that prosecution case is false and possibility of success for the prosecution is absolutely bleak. Further, according to the learned Counsel, the respondents'' Investigating Agency have caused serious injury to the reputation and status of the petitioner by snapping his photographs and publishing them in local daily newspapers and indulged in ''trial by media''. The learned Counsel made reference to the following rulings:
(1) State of Haryana and Ors. v. CH. Bhajanlal and Ors. 1 (2006) CCR 209
(2) Roy V.D. v. State of Kerala 2004 (4) Crimes 196
(3)
(4) Nasimkhan v. State of Maharashtra 2005 All MR (Cri) 377.
(5) Amarjeetsingh Jeevansingh v. State of Maharashtra 2006 All MR (Cri) 489.
(6) Roshan Lal v. State of Bihar 1993 (2) Crimes 656 (Pat)
(7)
5. We have gone through the rulings.
(a) In
it is held
that the legal mandate enshrined in Section 154(1) is that every information relating to commission of a cognizable offence, if given orally or in writing to an officer in charge of the police station and signed by the informant should be entered in a book to be kept by such officer in such form commonly known as ''First Information Report''. At the stage of registration of a crime on the basis of information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.
It is further held that the police officer has to satisfy himself only on the allegations mentioned in the first information before he enters on an investigation as to whether those allegations do constitute a cognizable offence warranting an investigation.
The Apex Court concluded 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. Thus, the Magistrate 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 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 up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of ''Divine Power'' which no authority on earth can enjoy.
The Apex Court then gave following categories of cases by way of illustration where power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though at the same time, the Apex Court observed that it would not be possible to lay down any precise, clearly defined or 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 In formation Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except u/s 156 of the Code except under an order of a Magistrate within the purview of Section 155 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 u/s 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 concerned Act (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 concerned Act, providing the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7). Where a criminal proceeding is manifestly attended with mala fide 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.
It was also held that when Station House Officer was not clothed with requisite legal authority within the mean of Section 5A(1) of the Prevention of Corruption Act, 1947, the direction issued by the Superintendent of Police to SHO to investigate was violative of the legal provisions and the Apex Court had no other option but to quash the order of direction. Thus, in the result, the Apex Court quashed the commencement as well as the entire investigation on the ground that the SHO was 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 Corruption Act, giving liberty liberty to the State Government to direct an investigation afresh, if it so desired, through a competent Police Officer empowered with valid legal authority in strict compliance with Section 5A(1) of the Act.
(b) In Roy V.D. v. State of Kerala reported in 2000 (4) Crimes 196 (SC) the Apex Court held, ''it is well settled that the power u/s 482 Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power u/s 482 Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. If the proceedings in the instant case are not quashed, the illegality will be perpetuated resulting in grave hardship to the appellant by making him to undergo the ordeal of trial which is vitiated by the illegality and which cannot result in conviction and sentence. This is, in our view, a fit case to exercise power u/s 482 of Cr.P.C. to quash the impugned proceedings''.
(c) In
(d) In K.L. Subhayya v. State of Karnataka reported in AIR 1970 SC 711, in view of the conclusion that the provisions of Section 54 were not at all complied with, the Apex Court, it was held that the entire search without jurisdiction and as a logical corollary, vitiated the conviction. The Apex Court felt that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The Apex Court consequently set aside conviction and sentence.
(e) In Nasimkhan and Ors. v. State and Anr. reported in 2005 ALL MR (Cri) 377 and Amarjeetsingh and Anr. v. State of Maharashtra and Ors. reported in 2006 All MR (Cri) 489, the learned single Judge of this Court, found that seizure and investigation by Assistant Police Inspector was not legal, he being an officer below the rank of Police Inspector. Reliance was placed upon the decision in Roy V.D. v. State of Kerala 2004 (4) Crimes 196 (SC), FIR and Criminal Case were quashed and set aside. However, it appears that rulings in
(f) In M.S. Rohan Lal v. State of Bihar and Ors. reported in 1993 (2) Crimes 656, learned single Judge of Patna High Court held that a valid seizure by the authorised competent person is a sine-qua-non for giving jurisdiction to a collector for starting a proceeding for confiscation under Essential Commodities Act. In the said case, the Court found that District Supply Officer was never authorised to search and seize stock of foodgrain and, therefore, prosecution lodged by him on the basis of such search and seizure was held to be illegal and the proceedings were accordingly set aside.
(g) In
6. There can be no quarrel over the propositions well-settled so as to exercise extraordinary wide powers u/s 482 of the Cr.P.C. or under Article 226 of the Constitution of India. If continuance of criminal proceeding would amount to abuse of the process of the Court or that complaint was filed merely to harass the accused, such criminal proceedings may be quashed. When allegations at face value do not disclose offence and if it appears that criminal proceedings are initiated mala fide i.e. to wreak vengeance, then High Court can quash the criminal proceedings. But, at the same time, power cannot be exercised to stifle legitimate prosecution. Allegations of mala fides against the first informant and investigating agency depends upon evidence collected and produced in Court. Issues of magnitude cannot be seen in their true perspectives without examining sufficient material. High Court cannot appreciate evidence to conclude whether material is sufficient or not to convict. The power u/s 482 Cr.P.C. has to be examined sparingly with circumspection and in rarest of rare cases. The power is not unlimited, hence can be used only when clear case is made out of miscarriage of justice. High Court would not enter into disputed questions of facts. There would be no justification for interference if the complaint in the case indicate necessary factual foundation bearing in mind the legal propositions canvassed at the Bar and considering the contentions on behalf of the respondents as well we think it fit to consider the latest legal position emerging from judicial precedents on the subject canvassed at the Bar.
7. The term ''information'' used in Sections 154, 155, 156 and 190(c) of the Code of Criminal Procedure (in short ''Cr.P.C.'') read collectively, must disclose cognizable offence, to be recorded as First Information Report. It is obligatory on the part of any Police Officer receiving information disclosing cognizable offence to record it and register case on the basis of such information. If case relates to two offences of which at least one offence is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that some offences are non-cognizable. Under such circumstances, the Cr.P.C. enables Police Officer to investigate such offences with same powers as he has while investigating a cognizable offence. It is statutory right of Police to inquire and investigate the circumstances of alleged cognizable crime without requiring authority from the Judicial Magistrate. It is common knowledge that the function of the judiciary and police are complementary and not over-lapping. The Court''s function begins when a charge is preferred before it, or when accused is/ are charge-sheeted. Detection of crime is function of police while punishment of crime is judicial function. Commencement of investigation by any Police Officer is subject to two conditions, namely; (i) he shall have reason to suspect the commission of a cognizable offence ; and , (ii) he shall subjectively satisfy himself as to whether there is sufficient ground to enter into investigation before he starts investigation into the facts and circumstances of the case , as contemplated under Clause (b) of the proviso to Section 157(1) of the Cr.P.C. No doubt, it is the paramount duty of Police to prevent and detect crimes and bring culprits to book. If Police have failed to observe the procedure, acted unfairly or with ulterior motive or mala fide, writ jurisdiction may be invoked for safeguarding personal liberty of a citizen as he cannot be deprived of it except in accordance with procedure established by law. The Court can not be justified to interfere with the investigation so as to direct Police how to conduct investigation. The Court concerned can examine the material placed before it to record finding as to whether accusation is proved. As has been observed by His Lordship Shri Madkholkar, J. in
In the absence of any prohibition in the Code, express of implied, I am of the opinion that it is open for the Police Officer to make preliminary inquiries before registering an offence and making full- scale investigation into it.
8. Investigation can be quashed in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, or, under inherent powers u/s 482 of the Cr.P.C. if no cognizable offence was disclosed in the FIR. In such cases, there is no question of appreciating evidence as merely upon perusal of complaint, the High Court may hold that it is manifestly unjust to allow proceedings to proceed or go further. Court cannot be utilised for any oblique purpose. Ultimately if chances of conviction appears remote, then High Court may quash proceedings in exercise of inherent powers u/s 482 of Cr.P.C. The jurisdiction u/s 482 of Cr.P.C. has to be exercised sparingly and with circumspection. If the allegations made in the FIR taken on its face value and accepted in their entirety do not constitute offence, the criminal proceedings instituted on the basis of FIR should be quashed. (See
9. It is well-settled legal position that illegality committed during the course of investigation does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has been taken and the case proceeded to termination, the validity of the proceedings with the preceding investigation does not vitiate the result unless miscarriage of justice has been caused. Of course, if breach of mandatory provision relating to investigation is brought to the notice of the Court at early stage of the trial , Court will have to consider the nature and extent of violation and pass appropriate order as may be called for to rectify the illegality and cure the defects in the investigation. The E.C.Act, 1955 is enacted in the interest of general public to ensure fair, unadulterated supply and distribution of essential commodities. It is pertinent to quote Section 10A of the Essential Commodities Act 1955, which reads as under:
Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) every offence punishable under this Act shall be cognizable.
Thus, the above provision imply that an Officer -in-charge of Police Station on receipt of the information of any cognizable offence may without the order of the Magistrate, investigate into the offence according to the procedure prescribed in Chapter XII of the Code. On completion of the investigation, the Police Officer shall submit report to the Magistrate empowered to take cognizance of the offence on Police report.
10. In the present case, the Magistrate has taken cognizance on the basis of charge-sheet submitted u/s 173 of the Cr.P.C. Upon completion of investigation, charge-sheet was submitted by the Police Officer empowered to investigate and report u/s 173 of the Cr.P.C. Regarding search and seizure in respect of alleged adulteration of Naphta with petrol, Section 102 of the Cr.P.C. empowered the Police Officer to seize any property which created suspicion of the commission of any offence.
11. The term ''any offence'' is wide enough to include offence outside the Indian Penal Code. An useful reference can be made to
12. Thus, a Police Officer who has reason to believe that the cognizable offence has been committed, enables him to investigate the matter without any order from the Magistrate and Section 41 authorises him to arrest any person without warrant. The power as above flows from the parent statute i.e. Code of Criminal Procedure read with Section 10A of the E.C.Act, 1955. It must be noted that Section 10AA of E.C. Act, 1955 is no more existing on the statute book as lapsed on expiry of 15 years from 1981.
13. In the
14. In view of Section 10A of the E.C. Act, 1955 read with Section 156 of the Cr.P.C. any Police Officer in-charge of a Police Station can start investigation if it comes to his knowledge that a cognizable offence has been committed within the jurisdiction of Police Station. Therefore, it cannot be said that API Thakre and staff had no power to search and seize essential commodities in respect of which the alleged offence was committed. Section 41 of the Cr.P.C. do authorise Police Officer to arrest accused without warrant. The trial Court seised of the charge-sheet can consider to proceed with the trial in accordance with law. Anti-social and economic offenders with motive of profiteering ought not to go unpunished due to hallow technicality. Police do have statutory power to investigate and present charge-sheet in Court in accordance with law. If the accusation is groundless or there is no sufficient ground to proceed further, the trial Court can certainly consider plea of discharge if moved by the accused, who is charge- sheeted or made to face the proceedings.
15. It cannot be laid down as general rule of law that where there is special law making particular act an offence and providing punishment for such offence, the General Law must be held to be inapplicable. Existence of special law excludes the operation of the Code only to the extent of provision made in the Special Law to the contrary. Where statute is silent and there is no exclusion then the Code will apply as a parent statute in respect of inquiry, investigation and trial of Criminal cases. Section 4(2) of the Cr. P.C. provides that the provisions of the Code of Criminal Procedure are also applicable in cases where an offence under any other law is being enquired, investigated , tried or otherwise dealt with subject to any enactment for the time being in force regulating the manner and basis of investigation inquiry, trial or otherwise dealing with such offence.
16. Therefore, Police do have power to inquire, to investigate into offences and to take steps, such as, search, seizure etc. in case there is reason to believe that cognizable crime is committed.
17. We are also fortified in our conclusion by observations made by the Apex Court in
20. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below rank of a Deputy Superintendent of Police shall investigate any offence punishable u/s 161, Section 165 and Section 165-A I.P.C. or u/s 5 of the said Act without the order of a Magistrate of the First Class. In H N Rishbud (supra) the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down:
The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading ''conditions requisite for initiation or proceedings''. The language of this Section is in marked contrast with that of the other section of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Cls.(a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance of an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) or Section 190 (whether it is one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.
The Court after referring to
18. Considering the judicial precedents cited above, in our opinion, an irregularity in an investigation, unless it is shown that it is tainted by gross illegality which may have caused miscarriage of justice would be curable in terms of Section 465 of the Cr.P.C. Thus, it is clear that illegal investigation does not prohibit a Court from taking cognizance upon submission of charge-sheet or final report as contemplated under Sections 170 to 173 of the Cr.P.C. The accused may also raise an objection regarding illegality of investigation. In view of Section 173(8) , the Court may direct further investigation by an appropriate Investigating Officer if it considers that demands of justice require it. However if case proceeds to trial, illegality of investigation cannot be pleaded as vitiating the trial unless such illegality has resulted into miscarriage of justice. In the present case, it appears that Police Officer statutorily competent -Deputy Superintendent of Police, Nagpur Division, Nagpur, who investigated the case, has filed charge-sheet.
The prosecution will have to and must be given opportunity to prove that he was duly empowered to investigate into the case and also to substantiate it''s stand that investigation was done according to law. Even otherwise, the function of investigation is to collect evidence and illegality in the course of collection of evidence can scarcely be considered by itself to affect legality of trial by otherwise competent Court who can punish offence investigated -or acquit the innocent, if any. Pursuant to discussion as above, in our opinion, since the Police have already filed charge-sheet in the case upon completion of investigation against the petitioner, it would be under judicial scrutiny of the trial Court. The trial Court will scrutinise the material on record and other circumstances and shall proceed with the case in accordance with law. The petitioner shall be at liberty to raise plea for discharge in the Court below, if so advised, which if raised, shall be considered on its own merits and in accordance with law as expeditiously as possible and preferably within three months from the date of receipt of this order.
19. For the above reasons, the petition has no merits and it deserves to be dismissed. Accordingly, Petition is dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs.
