Vinod Kumar v. State of H.P. & Ors.

against the petitioner, and for quashing of the First Information Report No.106 of 2010.

2. It is pleaded that one Smt.Saroj Gupta wife of Shri Raghunath, resident of Ogli (Excise Colony) Kala Amb, Tehsil and Police Station Nahan, District Sirmaur, 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 H.P. has lodged First Information Report No.106 of 2010 with Police Station Sadar at Nahan on 16th May, 2010 under Sections 457, 380 of the Indian Penal Code alleging therein that some people have broken into the locks of her residence and stolen some household articles and ornaments. Investigation commenced thereafter.

3. It is submitted by learned Senior Counsel appearing for the petitioner that no case whatsoever is made out against the petitioner and in these circumstances he cannot be arrested for the allegations made in the First Information Report (supra). Learned Senior Counsel has referred to the orders of remand passed by the Court vide Annexures P-1 to P-3 and submits that in none of these orders remand of the petitioner has been sought. In the First Information Report, as lodged, he was not named as one of the accused. He submits that the addition of Section 411 IPC is without any basis whatsoever.

4. Adverting to this submission first, it is by now well settled that at the stage of investigation, it would not be proper for this Court to exercise its powers under Section 482 for quashing the First Information Report. In State of Karnataka and Another vs. Pastor P.Raju, (2006)6 SCC 728, the Supreme Court holds:- (cid:147)15. (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133) (cid:133)No report as contemplated by Section 173 Cr.P.C. 3 had been submitted by the incharge of the police station concerned to the Magistrate empowered cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja & Anr. (2003) 6 SCC 195, where after referring to King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud & Inder Singh v. The State of Delhi AIR 1955 SC 196, State of West Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha & Ors. v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar & Anr. v. JAC Saldanha & Ors. (1980) 1 SCC 554, it was observed as under in para 20 of the reports :- course during "20. Thus the legal position is absolutely settled by judicial authorities Court interfere with the investigation investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency." 4 This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when matter investigation stage.

16. In the concluding paragraph of the judgment under challenge, the High Court observed considering circumstances and the allegations made in the complaint it could be said that the initiation of criminal proceedings is abuse of process of Court and miscarriage of justice. No reasons in support of the aforesaid observation have been given. As already stated, the case was still under investigation and the police was in the process of collecting evidence. The sweeping remark made by the High Court in the circumstances of the case was wholly unjustified.(cid:148)

5. To similar effect is the judgment of the Supreme Court in Renu Kumari vs. Sanjay Kumar and Others, (2008)12 SCC 346. The Supreme Court, considering the entire case law on the point, holds that the power is to be exercised sparingly and in exceptional cases as laid down by the Court in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335.

6. Considering that the case is still at its investigation stage, it would be inappropriate to quash the First Information Report, as prayed for. In the two 5 cases considered above, the Supreme Court has held in no uncertain terms that the powers of investigation of the police should not be circumscribed by the Court. It is only in exceptional circumstances that the Court could exercise its powers to quash criminal proceedings. The categories are now well defined in Bhajan Lal(cid:146)s case (supra) as followed by subsequent judgments. The fact that no remand has been sought for by the petitioner herein by itself does not suggest that he is not involved in the case as investigation is still in progress.

7. On the second aspect of the case, the learned counsel submits that the Magistrate was not within his jurisdiction to have issued non-bailable warrants. He submits in particular that the warrant which has been issued is not in accordance with the provisions of Sections 78 and 79 of the Code of Criminal Procedure. In particular, he has referred to sub-section 2 of Section 78 and submits that the police has been acting in a high handed manner. I have perused the case diary submitted by the police. I do not find that the submissions made by the petitioner herein have been substantiated on the record. Needless to say, that if in any eventuality the warrant has not been issued in accordance with law the obvious consequences would follow.

8. When the petition was taken up for admission, this Court had issued a direction on 22nd September, 2010 that the petitioner be not arrested and that in case his arrest is imminent he be released on anticipatory bail. 6 Learned counsel for the State as also for the petitioner are at variance on the events which intervening the passing of the orders as of today. The submission is also made on behalf of the learned Additional Advocate General that custodial interrogation of the petitioner is required. He in particular refers to the decision of the Supreme Court in State Rep.by the C.B.I. vs. Anil Sharma, JT 1997(7) SC 651 to support his contention that custodial interrogation is required in cases of this nature. I am not determining the allegations and counter allegations which have been made by the parties against each other. In the facts and circumstances of the case, this petition is dismissed. September 27, 2010 (aks) (Dev Darshan Sud) Judge.