2008 Supreme(Bom) 1399

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR
K.J. ROHEE & A.P.BHANGALE, JJ.
Dinesh s/o Bhawarlal Sarda — APPELLANT
VERSUS
State of Maharashtra — RESPONDENTS
CRIMINAL WRIT PETITION NO: 33/2007
Decided on : 26th September, 2008

Headnote:Constitution of India, 1950 - Article 226-Criminal Procedure Code, 1973, Sections 154, 155, 156, 197, 190(c) and 482-Interference with investigation-Not justified.-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 PC 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 PC. 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 laws. The Court cannot be justified to interfere with the investigation so as to direct police how to conduct investigation.

       Constitution of India, 1950 - Article 226-Illegality committed during course of investigation-Effect of.-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.

       Criminal Procedure Code, 1973 - Section 4(2), 156 and 41-Essential Commodities Act, 1955, Sections 7 and 3-Inquiry, investigation and trial-Applicability of Criminal Procedure Code.-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.

       Criminal Procedure Code, 1973 - Sections 173, 156 and 465-Illegality of investigation-Resulted into miscarriage of justice.-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 PC. 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 PC. 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.

       Criminal Procedure Code, 1973 - Section 482-Criminal proceedings-Quashing of.-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.

       Criminal Procedure Code, 1973 - Sections 482 and 173-Constitution of India, Article 226-Investigation-When can be quashed.-Investigation can be quashed in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, or, under inherent powers under Section 482 of the Cr PC 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 appear remote, then High Court may quash proceedings in exercise of inherent powers under Section 482 of the Cr PC. The jurisdiction under Section 482 of Cr PC 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.