B. N. Katju, J. - (1.) THE prayer of the applicant that his arrest may be stayed in crime no. 137 of 1985 under sections 395, 397 and 412 IPC P. S Gajner, District Kanpur Dehat during the pendency of this application is rejected.
(2.) THIS is an application under section 482 CrPC praying that the arrest of the applicant Puttan Singh be stayed in connection with case Crime No. 137 of 1985 under sections 395,397 and 412 IPC Police Station Gajner, district Kanpur Dehat. It was further prayed that the arrest of the applicant in the aforementioned case be stayed during the pendency of this application in this Court. It appears that a first information report was lodged by Sheo Nath Singh opposite party no. 2 on 9-7-1985 at 6.10 P. M. at Police Station Gajner, district Kanpur Dehat against the applicant and five others, namely, Chandra Bhan Singh, Smt. Suraj Kali wife of Chandra Bhan Singh, Udai Bhan Singh, Rustam Singh and Bhuwan Singh son of Rustam Singh, A charge-sheet has been filed in Court against Udai Bhan Singh, Rustam Singh and Bhuwan Singh but no charge sheet has been filed against the applicant, Chandra Bhan Singh and Smt. Suraj Kali in court so far. Udai Bhan Singh was granted bail on 12-12-1986 by this court. Chandra Bhan Singh and Smt. Suraj Kali filed Criminal Misc. Application No. 7444 of 1986 in this court under section 482 CrPC praying that their arrest be stayed pending investigation in the aforesaid case and this court by its order dated 22-1-1986 stayed their arrest. Leela Singh and Ram Singh who were subsequently named as being amongst the accused during investigation filed Criminal Misc. Application No. 3009 of 1986 and this court by its order dated 14-5-1986 stayed their arrest during the pendency of the investigation.
(3.) THIS application was heard by a learned Single Judge who found it difficult to accept the prayer of the applicant that his arrest be stayed during the pendency of the investigation of the above mentioned case in view of the decision of the Supreme Court in the ease of State of Bihar v. J. A. C. Saldanna, AIR 1980 SC 326. As the arrest of the co-accused had been stayed by this Court as mentioned earlier he: referred the question as to whether or not the arrest of the applicant can be stayed during the investigation of the case against him by this court under section 482 CrPC for decision to a larger Bench. That is how this question has come up for decision before us. The applicant is nominated in the first information report lodged by Sheo Nath Singh under sections 395 and 397 IPC which are cognizable offences. The power of the police to investigate a cognizable offence without any interference by this Court in the exercise of its inherent powers has been considered in a number of decisions of the Privy Council and the Supreme Court. In the case of Emperor v. Khwaja, Nazir Ahmad, AIR 1945 PC 18 it was held : " Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under section 491, Criminal P. C, to give directions in the nature of habeas corpus. In such a case as the: present, however, the Court's functions being when a charge is preferred before it and not until then. It has sometimes been thought that section 561-A has given increased powers to the court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation. " In the case of State of West Bengal v. S. N. Bahak, AIR 1963 SC 447 it was held : " At the time the respondent filled the petition in the High Court only a written report was made to the police (by the Sub-Inspector of Police Enforcement Branch and on the basis of that report a First Information Report was recorded by the Officer-in-charge of the Police Station and investigation had started. There was no case pending at the time excepting that the respondent had appeared before the Court, had surrendered and had been admitted to bail. The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and section 156 with investigation into such offences and under sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under section 439 or under the inherent power of the court under section 561-A of the Criminal Procedure Code. " and the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad (supra) was approved in the case of Si. N. Sharma v. Bipen Kumar Tiwari, AIR 1970 SC 786 the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad (supra) was again approved and it was held : " This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Conncil were, of course, concerned only with the powers of the High Court under section 561-A, CrPC while we have to interpret section 159 of the Code......... Counsel appearing on behalf of the appellant urged that such an interpretation is likely to be very prejudicial particularly to officers of judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dislike. In such cases, the police may engineer a false report of a cognizable offence against the Judicial Officer and may then harass him by carrying on a prolonged investigation of the offence made out by the report. It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. " In the case of Hazari Lal Gupta v. Rameshwar Prasad, AIR 1972 SC 484 it was held : " The inherent power of the High Court under section 561-A of the Criminal Procedure Code has been considered by this Court in R. P. Kapoor v. State of Punjab, 1960) 3 SCR 388 = AIR 1960 SC 866 and State of West Bengal v. S. N. Basak, (1963) 2 SCR 52 = AIR 1968 SC 447. In exercising jurisdiction under section 561-A of the Criminal Procedure Code the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is "reliable or not". Where again, investigation into the circumstance of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. "' In the case of Jehan Singh v Delhi Administration, AIR 1974 SC 1146 after referring to the case of State of West Bengal v. S. N. Basak (supra) it was held : " Here also, no police challan or charge-sheet against the accused had been laid in court, when the petitions under section 561-A were filed. The impugned proceedings were those which were being conducted in the course of police investigation. Prima facie, therefore, the rule in Basak's case would be attracted. " In the case of Kurukshetra University v. State of Haryana, AIR 1977 SC 2229 it was held : " It surprises us in the extreme that (he High Court thought that in the exercise of its inherent powers under section 482 of the Code of Criminal Procedure, it could quash a first information report The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice, That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. " In the case of State of Bihar v. J. AC Saldanna, AIR 1980 SC 326 it was held : " There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in section 173 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. " and the decision of the Privy Council in the case of Emperor v. Khawaja Nazir Ahmad (supra) was approved. In the case of State of West Bengal v. Sampat Lal, AIR 1985 SC 195 it was held : " The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the court into police investigation has not been approved. " And the decision of the Privy Council in the case of Emperor v. Khawaja Nazir Ahmad (supra), and the decisions of the Supreme Court in the case of S. N. Sharma v. Bipen Kumar Tewari (supra), and State of Bihar v. J. A. C. Saldanna (supra) were approved. In the case of State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949 after referring to the case of Emperor v. Khawaja Nazir Ahmad (supra) it was held : " The Privy Council qualified its statement by saying : " No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation. " If anything, therefore, the judgment shows that an investigation can be quashed if no cognizable offence is disclosed by the FIR. It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to qualify its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases, " ;