JAMMU AND KASHMIR HIGH COURT
Rajnesh Oswal, J.
Gaurav Sharma – Petitioner
versus
Union Territory of J&K – Respondent
CRM(M) No.432 of 2020
Decided on 28.7.2021

IMPORTANT POINTS
(1) Bar as prescribed by Section 195 Cr.P.C is only with regard to taking of cognizance and it does not restrict statutory power of Police to register FIR and investigate the same.
(2) Quashing of a complaint/FIR should be an exception rather than an ordinary rule.
(3) When investigation is still at initial stage, court should not hasten to interdict investigation.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 195(1)(a) – Indian Penal Code, 1860 – Section 188 – Contempt of lawful authority of public servant – Police report does not amount to complaint except where police officer after investigation makes a report about commission of non-cognizable offence – Bar as prescribed by Section 195 Cr.P.C is only with regard to taking of cognizance and it does not restrict statutory power of Police to register FIR and investigate the same – Public servant whose order is violated or his superior officer may file a complaint on the basis of FIR and material collected during course of investigation by Police in the event Investigating Officer approaches said officer for filing complaint.

Held: Now, a bare perusal of the section 195 Cr.P.C. reveals that no court can take cognizance of an offence punishable under section 172 to 188 or abetment or attempt to commit to such offence or conspiracy to commit such offence except on a complaint in writing of the public servant or some other public servant to whom he is administratively subordinate. Section 2(d) Cr.P.C provides that the complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some persons, whether known or unknown has committed an offence but does not include police report. Thus, the police report does not amount to complaint except where the police officer after investigation makes a report about the commission of non cognizable offence. So far as instant case is concerned, it is not the case of the petitioner that the police has filed a complaint before the Magistrate as the matter is still under investigation. Section 195 Cr.P.C. clearly bars taking of the cognizance by the Magistrate but does not bar the investigation by the police officer.

Thus, bar as prescribed by section 195 Cr.P.C is only with regard to taking of cognizance and it does not restrict the statutory power of Police to register FIR and investigate the same. The public servant whose order is violated or his superior officer may file a complaint on the basis of FIR and material collected during the course of investigation by the Police in the event Investigating Officer approaches the said officer for filing complaint. In the aforesaid judgments relied upon by Mr. Kohli, the said issue has not been considered, as such, the same are not applicable in the instant case, so this Court is of the considered opinion that bar contained under section 195(1)(a) Cr.P.C. for taking cognizance of offence complained of, does not affect the power of the court to register FIR. (Paras 11 and 14)

(B) Indian Penal Code, 1860 – Section 188 – Criminal Procedure Code, 1973 – Sections 195(1)(a) and 482 – Contempt of lawful authority of public servant – Contention of petitioner that premises was a warehouse and no business activity was being undertaken is belied by registration certificate placed on record by petitioner only in which it is categorically mentioned that nature of business/trade is ‘Courier Services’ – All shops/markets except for groceries, fruits, vegetables, dairy products, medical shops, petrol pumps and other establishments were ordered to be closed till 31.03.2020 so premises of petitioner that was involved in business of ‘Courier Services’ also fell within purview of restrictions imposed by District Magistrate – Otherwise also, investigation is still is at initial stage and that was stayed by court and investigation is yet to be completed – It is only in cases where no cognizable offence or offence of any kind is disclosed in first information report that Court will not permit investigation to go on – Quashing of a complaint/FIR should be an exception rather than an ordinary rule – Petition dismissed.

Held: A perusal of the FIR reveals that during the course of checking at about 1730 hours one business premises was found running in violation of District Magistrate, Jammu orders dated 15.03.2020 and 19.03.2020 and further during investigation it was found that one shop was found open. There is no allegation in the FIR that the truck was being unloaded in the premises. The contention of the petitioner that the premises was a warehouse and no business activity was being undertaken is belied by the registration certificate placed on record by the petitioner only in which it is categorically mentioned that nature of business/trade is ‘Courier Services’. The receipt dated 22.03.2019 does not establish that the same was issued with regard to the premises in question located at Ranibagh rather in the said receipt the place has been mentioned as warehouse, which is the place other than the Ranibagh Satwari, Jammu and is located quite far away Ranibagh, Jammu. The contention raised by the petitioner amounts to his defence based upon the factual aspects and this Court cannot conduct a roving enquiry in order to find out the genuineness of the defence of the petitioner so this contention too deserves to be rejected.

Thus, from the perusal of both the aforesaid orders reveals that all shops/markets except for groceries, fruits, vegetables, dairy products, medical shops, petrol pumps and other establishments were ordered to be closed till 31.03.2020 so the premises of the petitioner that was involved in the business of ‘Courier Services’ also fell within the purview of the restrictions imposed by the District Magistrate vide orders mentioned above.

Otherwise also, the investigation is still is at initial stage and that was stayed by the court and investigation is yet to be completed. It is settled law that when the investigation is still at initial stage, the courts should not hasten to interdict the investigation. Reliance is placed upon the decision of Apex Court in Neeharika Infrastructure Pvt. Ltd Vs State of Maharashtra & Ors reported in 2021SCC OnLine 315, in which it has been held as under:

(i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

(ii) Courts would not thwart any investigation into the cognizable offences;

(iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

(iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

(v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

(vi) Criminal proceedings ought not to be scuttled at the initial stage;

(vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

(viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

(ix) The functions of the judiciary and the police are complementary, not overlapping;

(x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

(xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

(xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

(xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

(xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

(xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

(xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

In view of all what has been discussed above, this petition is found to be devoid of any merit, as such, the same is dismissed. Any observation made by this court has been on the basis of material placed on record at this stage only and shall not prejudice the right of the petitioner to raise the issues raised in the present petition before Investigating Officer concerned. (Paras 15, 18, 22 and 23)

Result: Petition dismissed.