S I. Jafri, J. - (1.) THE fate of this case is in the throes of uncertainty buffeted by repeated reference for determination of certain questions from Bench to Bench, of this court.
(2.) DISSENTING from the view of the division Bench of this Court in Crl. Misc. Application No. 13691 of 1986, Puttan Singh v. State of U. P. decided on 8-1-87. wherein it was held that the power of the Police to investigate into the case registered on the basis of a First Information Report in cognizable offences in unfettered and cannot be interfered with by the court in exercise of its inherent powers u/Sec. 482 CrPC. I had made a request for reference and the matter was referred for reconsideration of the questions by a larger bench consisting of five Judges by my reference dated 28-5-87 in the aforesaid case, for answering of certain issues to the following effect. (1) Whether u/Sec. 482 CrPC, the High Court has inherent powers to interfere with the investigation by the Police ? (2) Whether the High Court has powers to stay arrest during investigation ? (3) Whether the decision reported in 1987 AWG 404 lays down a correct proposition of law ? The answer to question no. (1) by the Full Bench comprising five Judges was as under : "Investigation into an offence is a statutory function of the Police and the superintendence thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the First Information Report and the Investigation over a reasonable length of time, do not disclose the commission of a cognizable offence, or any offence of any kind, that the High Court may, under section 482 of the Code, interfere with the investigation. The answer to quest no. (ii) by the Bench was as under : "under section 482 of the Code the High court may not direct stay of arrest during investigation except for a limited period in a case of such exceptional nature as is referred to in the preceding paragraph. However, before the papers could reach this court, by reason of the fact that it had been referred to by this court for answer of certain questions to a larger bench, for orders thereon the file was pre-empted by a learned Single Judge of this Court who posed certain issues out of his solicitude to render the approach of the Fell Bench consisting of five Judges as questionable as possible. Upon a reference from the aforesaid single Judge of this court, the then Hon'ble Chief Justice of this Court constituted a Bench comprising seven Judges for re-determination whether the ratio of decision in Puttan Singh's case having been upset by full Bench of five Judges was compatible with the correct law without abiding by the due procedure for the file to be sent first to this Court for necessary orders. Again erudite arguments followed and it was concluded by the Bench of seven Judges that the decision rendered by the Bench of five Judges thereby upsetting the conculusions reached in Puttat Singh's case was incorrect and that the inherent powers u/Sec. 482 of the Code was not available unless and until preceded by a charge-sheet having been filed in the appropriate court constituted under the code. It was also held in the decision rendered by the Bench of seven Judges that this court could not step in to interfere with the investigation and also could not put a restraint upon the Police from effecting arrest in pursuance of a FIR in exercise of powers u/Sec. 482 CrPC. In the light of the decision of the Bench comprising seven judges, I proceed to delineate ratio of the decisions rendered by Hon. Supreme Court vis-a-vis the decisions rendered by Full Bench comprising seven judges. One such decision which I propose to advert to is the case of Pavithran reported in 'Judgment Today' page 43 (1990) 2 as well as the case of R. K. Srivastava reported in 1989, 4 SCC 59. In the first case i.e. in the case of Pavithran, FIR had been lodged against a Police officer and investigation lingered for over three years. The aforesaid case came up from the decision of the High Court of Andhra Pradesh in which it was held that the investigation was unfair and unjust because of inordinate delay. In the ultimate analysis, the High Court quashed the FIR during the course of investigation in exercise of its powers u/Sec. 482 CrPC. It is worthwhile to underline the fact that in the aforesaid case, no charge-sheet had been submitted before any court under the Code of Criminal Procedure and the matter was very much at the stage of investigation. Aggrieved by the aforesaid decision, 'he State of Andhra Pradesh went up in appeal before Hon. Supreme Court. The Hon'ble Supreme Court re-appraised the matter and in the eventual analysis, it upheld the judgment of the High Court of Andhra Pradesh modifying only certain observations with the Hon'ble Supreme Court felt, were too broad. A close and careful analysis of the aforesaid decision of the Hon'ble Supreme Court bears it out that in the opinion of the Hon'ble Supreme Court, the innerent powers u/Sec. 482 CrPC was available to the court to interfere with a case on a precharge stage for purposes of quashing inordinately delayed investigation, a fortiori investigation based on FIR which discloses no offence, could be quashed in exercise of powers u/Sec. 482 CrPC. Now I turn to the case of R. K. Srivastava for analysis. In the instant case Hon'ble Supreme Court held that in exercise of powers u/Sec. 482 CrPC, FIR can be qahshed in the event when no offence is made out though upon a glance through this judgment is not borne out whether the charge- sheet had been submitted before the court under the Code or not. Here, a reasonable question pops out for answer. If on a bare perusal of the FIR, it can be quashed when no offence is made out, it does not stand to reason as to why the said FlR cannot be quashed in exercise of powers u/Sec. 482 CrPC preceding the submission of the charge-sheet in the Court. In my humble view, it would be most unjust unfair and arbitrary to allow the Police investigation to go on and further to allow the arrest to be effected in the case in which a criminal case is not borne out from a reading of the FIR. It would be nothing but a glaring instance of miscarriage of justice. There is yet another case decided by Hon'ble Supreme Court. Decision in Ram Lal Yadav's case rendered by Hon. Supreme Court knocks the bottom out of the case decided by Bench consisting of seven judges and upon a consideration of the decision in the light of the decision rendered by Hon. Supreme Court in Ram Lal Yadav's case, the law which the Bench of seven Judges lays down cannot be stretched too tar as to hold it a good law. Another serious taint which the decision in Ram Lal Yadavs case wears, is the footing on which this court had proceeded that the inherent powers of the High Court u/Sec. 482 CrPC is a statutory power and this court has been cued by certain observations in various judgments starting from the case of Khwaja Nazir Ahmad (AIR 1945 PC 18), AIR 1982 SC 949 State of West Bangal v. Swapan Kumar, AIR 1985 SC 628 Pratibha Ram, AIR 1985 SC 1668 Eastern Spinning Mills, AIR 1970 SC 786, S. N. Sharma and AIR 1960 SC 866, R. P. Kapoor.
(3.) IN the light of the above discussion, a scrutiny of the phraseology of section 482 CrPC is also rendered imperative. Section 482 CrPC consists of three different phrases (1) to give effect to any order under the code (ii) to prevent abuse of the process of any court ; and (iii) otherwise to secure the ends of justice. IN the decision rendered by this Court in the Bench consisting of seven judges, scope of these three phrases has not been dwelt upon ana delineated and hence the conclusion of the Bench of seven judges sans this exercise of traversing upon the scope of section 482 CrPC cannot be held to be justifiable by any stretch of imagination, that this power cannot be invoked at a pre-charge sheet stage. IN the above observation, I am fortified by a decision reported in AIR i985 SC 218 M/s. Amar Nath Om Prakash, Justice O. Chinnappa Reedy's judgment. The relevant portion in the aforesaid judgment which 1 have extracted is being quoted below. "There is one other significant sentence in Sreenivasa General Traders v. State of A. P. (Supra) with which we must express our agreement. It was said : "with utmost respect these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of the statute. These observations must be read in the context in which they appear. We consider it proper to say, as we have already said in other case, that judgments of courts are not to be construed as statutes. To interpret words phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the decision is meant to explain and not to define. Judges interpret statutes they do not interpret judgments. They INterpret words of statutes, their words are not to be interpreted as statutes. IN London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at 761 Lord Mae Dermot observed : "The matter cannot, of course, be settled merely by treating the ipsissima verba of willes J,, as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge". Upon a consideration of the above extracts drawn from different decisions, it becomes too implicit to say that the decision rendered by the Bench of Seven Judges wears the taint of precise error against which as quoted above, Mr. Justice Chinnappa Reddy had sounded a warning. The aforesaid Bench has not obviously undergone the tedium of relevant judicial exercise and hence the decision suffers from the infirmity of want of proper judicial exercise and in my view the judgment cannot be held to have laid down the correct law.;