Date: 21/11/1990 Pages: 315
The First Respondent was a Minister and subsequently Chief Minister of Haryana. Later he became Union Minister. On 12.11.1987 a complaint was presented before the Haryana Chief Minister, wherein serious allegations were levelled against the First Respondent. The main allegations were that he accumulated huge properties worth crores of rupees in the names of his family members, relations and persons close to him by misusing his power and position and all those transactions were benami in character.
The Chief Minister’s Secretariat marked the complaint to the Director General of Police, who in turn endorsed the same to the Superintendent of Police concerned. On directions from the Superintendent of Police, the SHO registered a case under Sections 161 and 165 of Indian Penal Code and under section 5(2) of the Prevention of Corruption Act, 1947 and took up the investigation.
Meanwhile, the First Respondent filed a Writ Petition before the High Court for a direction to quash the First Information Report and for restraining the appellants from proceeding further with the investigation. The High Court quashed the entire criminal proceedings holding that the allegations did not constitute a cognizable offence for commencing lawful investigation.
1. The judgment of the High Court quashing the First Information Report is set aside as not being legally and factually sustainable in law. However, the commencement as well as the entire investigation so far done is quashed on the ground that the SHO is 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.
2. If any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Criminal Procedure Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
Though a police officer cannot investigate a non- offence, he can investigate a non-cognizable offence under the order of a Magistrate having power to try such non-cognizable case within the terms under Section 155(2) but subject to Section 155(3).
The core of Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigation agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate sub-ordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.
The expression “reason to suspect the commission of an offence” used in Section 154(1) Cr. P.C. would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the First Information Report as well in the Annexures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression “reason to suspect” has to be governed and dictated by the facts and circumstances of each case
5. commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under clause (b) of proviso to Section 157(1).
6. 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.
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.
7. It is true that some of the allegations do suffer from misty vagueness and lack particulars. Further, there are no specific averments that either Respondent No. 1 or his relations and friends had no source of income to accumulate the properties now standing in their names and that Respondent No. 1 showed any favour to them by misusing his official position.
These are all matters which would be examined only during the course of investigation and thereafter by the court on the material collected and placed before it by the investigating agencies. The question whether the relations and friends of Respondent No. 1 have independently purchased the properties out of their own funds or not, also cannot be decided by the Court at this stage on the denial statement of Respondent No. 1 alone.
In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by 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;
(c) 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;
(d) where 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);
(e) 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;
(f) 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 efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide 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.
In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.
Evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides.
Even assuming that the complainant has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected.
9. A police officer with whom an investigation of an offence under Section 5(1)(e) of the Prevention of Corruption Act is entrusted should not proceed with a pre-conceived idea of guilt of that person indicated with such offence and subject him to any harassment and victimisation, because in case the allegations of illegal accumulation of wealth are found, during investigation as baseless, the harm done not only to that person but also to the office he held will be incalculable and inestimable.
10. In the instant case, the SP seems to have exhibited some over-enthusiasm, presumably to please ’someone’ and had directed the SHO to register the case and investigate the same even on the very first day of the receipt of the complaint from the DGP. This unprecedented over-enthusiasm shown by the S.P., without disclosing the reasons for making an order entrusting the investigation to the SHO who is not a designated officer under Section 5A(1), really shocks ones’ sense of justice and fair play even though the untested allegations made in the complaint require a thorough investigation.
Still, it is an inexplicable riddle as to why the S.P. had departed from the normal rule and hastily ordered the SHO to investigate the serious allegations levelled against a former Chief Minister and a Minister in the Central Government. However, this conduct of the SP can never serve as a ground for quashing the FIR.