M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned interim order dated 28.09.2020 passed by the Division Bench of the High Court of Judicature at Bombay in Writ Petition (ST) No. 2306 of 2020, by which, in an application filed by private respondent nos. 2 to 4 herein (hereinafter referred to as the 'original accused') under Article 226 of the Constitution of India r/w Section 482 Cr.P.C. with a prayer to quash the criminal proceedings being FIR No. 367/2019 dated 19.09.2019, the High Court has directed that "no coercive measures shall be adopted" against the original accused in respect of the said FIR, the original complainant has preferred the present appeal.
(2.) That the appellant herein has lodged an FIR against respondent nos. 2 to 4 herein - original accused at Worli Police Station, Mumbai for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code. That the allegations against the original accused pertain to forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property Naziribagh Palace ad-measuring 111,882 sq. ft. belonging to the appellant company to one M/s Irish Hospitality Pvt. Ltd. 2.1 Apprehending their arrest in connection with the aforesaid FIR, the original accused filed anticipatory bail application before the learned trial Court under Section 438 Cr.P.C. That the learned Sessions Court, Mumbai granted interim protection from arrest to the alleged accused. That the interim protection, which was granted by the learned Sessions Court, was further extended from time to time and continued nearly for a year thereafter. That during the pendency of the anticipatory bail application pending before the learned Sessions Court, Mumbai, original accused - respondent nos. 2 to 4 herein preferred a petition before the High Court of Judicature at Bombay under Article 226 of the Constitution of India r/w Section 482 Cr.P.C. for quashing the FIR, on 17.09.2020. That the said writ petition was listed for hearing before the Division Bench of the High Court on 22.09.2020, wherein an order was passed directing the matter to be listed on 24.09.2020 before another Bench. That on 28.09.2020, the writ petition was listed for hearing before another Division Bench. Learned counsel appearing on behalf of the appellant herein (respondent no.2 before the High Court) prayed for two weeks' time to file an affidavit in reply with an additional compilation of documents. That the Division Bench granted two weeks' time to the appellant herein to file an affidavit in reply with an additional compilation of documents in the Registry on or before 12.10.2020 with copy to the other side. Liberty was granted to the original accused (writ petitioners before the High Court) to file rejoinder, if any, on or before 19.10.2020. The matter was directed to be listed on board on 28.10.2020. While adjourning the matter to 28.10.2020, the High Court has passed the impugned interim order directing that "no coercive measures shall be adopted against the petitioners (original accused - respondent nos. 2 to 4 herein) in respect of the said FIR". When the aforesaid order was being passed, learned counsel appearing on behalf of the appellant submitted that anticipatory bail application filed by the original writ petitioners before the learned Sessions Court is pending for hearing and the learned Sessions Court may get influenced by the said order and therefore the Division Bench clarified that the learned Sessions Court shall decide the anticipatory bail application on its own merits. 2.2 Feeling aggrieved and dissatisfied with the impugned interim order passed by the Division Bench of the High Court directing that "no coercive measures shall be adopted" against the original accused (writ petitioners before the High Court) in respect of the said FIR, the original complainant has preferred the present appeal.
(3.) Shri K.V. Vishwanathan, learned Senior Advocate has appeared on behalf of the appellant - original respondent no.2 - complainant, Shri Diljeet Ahluwalia with Shri Malak Manish Bhatt, learned Advocates have appeared on behalf of the original accused - writ petitioners -respondent nos. 2 to 4 herein and Shri Sachin Patil and Shri Rahul Chitnis, learned Advocates have appeared on behalf of the State of Maharashtra. 3.1 Shri K.V. Vishwanathan, learned Senior Advocate appearing on behalf of the appellant - original complainant has vehemently submitted that such a blanket direction of the High Court restraining the investigating officer from taking coercive measures, in the facts and circumstances of the case, was not warranted at all. 3.2 It is submitted that, as such, the original accused - respondent nos. 2 to 4 herein were already having the interim protection from the learned Sessions Court, Mumbai in the anticipatory bail application which was continued from time to time since last one year. It is submitted that, as such, the original accused were not co-operating with the investigation after having obtained the interim protection of arrest and, in fact, the investigating officer addressed a communication to the learned Sessions Court stating that the accused were not co-operating with the investigation. It is submitted that therefore thereafter and that too while enjoying the interim protection from arrest, to file an application for quashing after a period of almost one year and obtain such an order is nothing but an abuse of process. 3.3 It is submitted that, as such, no reasons whatsoever have been assigned by the High Court while passing such an interim order of "no coercive measures to be adopted/taken" against the original accused. 3.4 It is submitted that the High Court ought to have appreciated that the original accused - respondent nos. 2 to 4 herein are facing very serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code and, in fact, the FIR was transferred to the Economic Offences Wing and the investigation was being conducted by the Economic Offences Wing. It is submitted that, as such, the original accused were not co-operating with the investigation after having obtained the interim protection from arrest. 3.5 It is further submitted by Shri Vishwanathan, learned Senior Advocate appearing on behalf of the appellant that, as such, by issuing such a blanket direction restraining the investigating officer from taking coercive measures against the original accused, the valuable right of the investigating officer to investigate the offences has been hampered and/or taken away. 3.6 Relying upon the decision of this Court in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, it is submitted by Shri Vishwanathan that as observed and held by this Court the powers under Section 482 Cr. P.C or under Article 226 of the Constitution of India to quash the first information report is to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. It is submitted that it is observed by this Court in the aforesaid decision that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That such power has to be exercised sparingly, with circumspection and in the rarest of rare cases. It is submitted that it cannot be disputed that accused cannot approach the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, as held by this Court in catena of decisions, inherent power in a matter of quashing of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. It is submitted that in the aforesaid decision it is observed and held that 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. 3.7 It is submitted that in a given case, the Court, having found that the case falls within the parameters of exercise of powers under Section 482 Cr.P.C. to quash the FIR, may pass appropriate interim orders as thought apposite in law, but even such an interim order shall be passed regard being had to the parameters of quashing and the self-restraint imposed by law. It is submitted that even in such a case the High Court has to consider the allegations made in the FIR or what has come out in the investigation. 3.8 It is submitted that in a case the accused against whom the FIR is lodged is apprehending arrest, a remedy is available to him to file the anticipatory bail application under Section 438 Cr.P.C. It is submitted that even when the anticipatory bail application under Section 438 is filed, the same can be granted within the parameters of Section 438 Cr.P.C. and the conditions of the said provision are satisfied. It is submitted that, however, such a blanket order of no coercive steps without imposing any condition whatsoever and without satisfaction of the conditions of Section 438 Cr.P.C. is not permissible at all. 3.9 It is further submitted that, as such, by passing such a blanket order of "no coercive steps to be taken", even the valuable right of the investigating agency/police to investigate the FIR will be affected. 3.10 It is submitted that assuming that the High Court has jurisdiction to pass an interim order in a given case, regard being had to the parameters of quashing, in that case also, such interim orders cannot be passed mechanically and/or without assigning any reasons. It is submitted that while granting such a protection, even the High Court has to give some brief reasons why stay of investigation and/or such an order of "no coercive steps" is warranted. It is submitted that there must be a reflection of application of mind to the facts of the case; allegations in the FIR and what has come out in the investigation. It is submitted that, as such, when the investigation is in progress at the threshold, it is not appropriate to stay the investigation of the case. It is submitted that only in an exceptional case and rarest of rare case, the powers to quash the FIR are required to be exercised sparingly and with circumspection. It is submitted that the same parameters which shall be applicable while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to quash the FIR/investigation shall be applicable while passing an appropriate interim order. 3.11 Shri Vishwanathan, learned Senior Advocate appearing on behalf of the appellant has relied upon the following decisions on when a High Court can grant a stay of investigation or "no coercive measures order" in exercise of its powers under Section 482 Cr.P.C./under Article 226 of the Constitution of India and in support of his submissions that (1) inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice and the statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases; (2) power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary; (3) save in exceptional case 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; (4) in case a police officer transgresses the circumscribed limits and improperly and illegally exercises his powers in relation to the process of investigation, then the Court has the necessary powers to consider the nature and extent of the breach and pass appropriate orders; (5) the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court; (6) the High Court has no inherent powers to interfere with the investigation, unless it is found that the allegations do not disclose the commission of a cognizable offence or the power of investigation is being exercised by the police malafidely; (7) the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of an offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In support of his above submissions, learned Senior Advocate has relied upon the following decisions, namely, King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18; R.P. Kapur v. State of Punjab AIR 1960 SC 866; Kurukshetra University v. State of Haryana (1977) 4 SCC 451; State of A.P. v. Golconda Linga Swamy (2004) 6 SCC 522; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122; Sanapareday Maheedhar Seshagiri v. State of Andhra Pradesh (2007) 13 SCC 165; State of Andhra Pradesh v. Bajjoori Kanthaiah (2009)1 SCC 114; State of Maharashtra v. ArunGulab Gawali (2010) 9 SCC 701; and State of Orissa v. Ujjal Kumar Burdhan (2012) 4 SCC 547. 3.12 Shri Vishwanathan, learned Senior Advocate has heavily relied upon the decision of this Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, on when the High Court would be justified in quashing the FIR/investigation. He has relied upon paras 60, 61, 102 and 103 respectively of the aforesaid decision. 3.13 Relying upon the decision of this Court in the case of Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688, it is submitted that the power to grant stay of investigation and trial is very extraordinary power given to the High Courts and such power is to be exercised sparingly only to prevent abuse of process and to promote the ends of justice. 3.14 Shri Vishwanathan, learned Senior Advocate also relied upon the recent decision of this Court in the case of Ravuri Krishna Murthy v. The State of Telangana and others (Criminal Appeal Nos. 274-275 of 2021, decided on 05.03.2021), by which a somewhat similar order of protection of not to arrest passed while not entertaining the quashing petition under Section 482, has been set aside by this Court considering the decision of this Court in the case of Habib Abdullah Jeelani (supra). 3.15 Shri Vishwanathan, learned Senior Advocate appearing on behalf of the appellant has further submitted that in the case of Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation, (2018) 16 SCC 299, this Court has observed and held that even in a case of challenge to the framing of the charge, wherever the stay is granted by the High Court in exercise of its revisional jurisdiction or otherwise, a speaking order must be passed showing that the case was of an exceptional nature. 3.16 It is further submitted that in many of the cases it is seen that the High Court while not entertaining the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and while dismissing such petitions, still grants interim protection/protection of not to arrest for a particular period or even till the report is filed under Section 173 Cr.P.C. It is submitted that the aforesaid is absolutely impermissible and such an order of not to arrest for a particular period can be said to be beyond the scope and ambit of Section 482 Cr.P.C. Once the quashing petition is dismissed, the accused may avail the remedy of approaching the trial Court and/or the concerned Court for anticipatory bail under Section 438 Cr.P.C and the same can be considered while imposing the conditions and/or having been satisfied that the conditions of grant of anticipatory bail are satisfied. It is submitted that in a given case the immediate custodial investigation is warranted and in view of such a blanket order of not to arrest, will take away the right of the investigating agency/police to investigate into the allegations in the FIR. It is submitted that as held by this Court in catena of decisions and even as per the provisions of the Cr.P.C, the police/investigating officer has the statutory obligation to investigate into the allegations in the FIR and to find out the truth. It is submitted that therefore such a protection while dismissing the petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India is not sustainable and is wholly impermissible. It is submitted that despite such orders have been criticized by this Court in the case of Habib Abdullah Jeelani (supra), still the High Courts are passing such orders, disregarding the law laid down by this Court. ;