Palok Basu - (1.) BEING oven awed by the unanimous verdict of five Honourable Judges in Prashant Gaur v. State, 1988 AWC 828 (for short the FBD), I must confess, on initial hesitation to write this order did develop in me, but by now, it stands completely removed by my judicial conscience. With sincere regrets, I feel duty bound to voice my bumble disagreement with the answers and the reasons for the same as set out in the FBD after hearing arguments from learned Advocates which I am putting down in the following paragraphs as succinctly as I can, of course, along with my own thoughts here and there.
(2.) IT so happened that in Criminal Misc. Application No. 5939 of 1988, Ram Lal Yadav v. State of U. P., challenge has been extended to the investigation emanating from a FIR lodged on 3-6-88 under section 3/7 E.C. Act at P. S. Bhadohi, district Varanasi by the brick kiln owners saying that U. P. Coal Control Order was not applicable on them and as such no offence was disclosed even if the entire allegations in the FIR are taken as correct, hence the investigation including the threat of arrest of applicant should be quashed and prevented. When Sri N. D. Shukla, Advocate, made his arguments, Sri P. S. Adhikari the learned AGA raised an objection to which I shall advert shortly hereafter. With this case, Criminal Misc. Application No. 5977 of 1988 Hubban v. State of U. P., Criminal Misc. Application No. 6024 of 1988 Sahdeo v. State, are already connected in view of orders of different Single Judges. Criminal Misc. Case No. 5940 of 1988 Radhoram Singh v. State and Criminal Misc. Application No. 5664 of 1988 Mahesh Chandra Goel v. State of U. P., being matters in which similar questions of law have been raised, were heard together. In Criminal Misc. Application No. 7967 of 1988 Raziuddin v. State of U. P., Mr. S. P. Singh Raghav, argued that when the admitted case in the FIR lodged under section 406 IPC at PS Kotwali Nagar, district Bulandshahar by one partner was that another partner took away the truck, purchased by both in partnership, and the same was standing at the shop of the other who was not willing to return it, there was no question of any offence being disclosed and hence investigation including threat of arrest should be quashed and stopped. As soon as this argument was advanced, Mr. P. S. Adhikari raised a preliminary objection after hearing which I had passed the following order in all these cases on the dates those came up before me : " In these cases a controversy of vital importance has arisen. While the learned counsel for the applicant in each case has tried to argue that since no offence is made out from a perusal of the FIR even if the facts stated therein are admitted as they are, the question is can this Court interfere unless some investigation for 'reasonable length of time' goes on and material is collected ? Mr. Adhikari appearing for the State relying upon the Full Bench Case of 'Prashant Gaur' vehemently argues that unless reasonable length of time elapses between the lodging of FIR and the accused's approaching this Court under section 482 CrPC or 226 of the Constitution (reliance is placed on the case of Nazir Ahmad, AIR 1945 Privy Council page 18, and the case of Swapan Kumar, AIR 1982 Supreme Court page 949) no relief by interfering during investigation can be granted. (Necessary interim orders were passed on the order sheets and each case noted above has been directed by me to be put up on 26th September 1988). To begin with, let us see the questions formulated by learned Single Judge, initially ordering : " Office is directed to place the papers before the Honourable the Acting Chief Justice, for constitution of a Beach of not less than 5 Judges for answering the reference. " and the answer given unanimously by the five Honourable Judges i- Question No. 1 Whether under section 482 CrPC the High Court has inherent powers to interfere with the investigation by the police ? Answer [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'FfR 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 Geort may, under section 482 of the Code interfere with the investigation. " Question No. 2 Whether the High Court has powers to stay arrest during investigation ? Answer Under section 482 of the Code, the High Oiurt, may not direct the stay of arrest during investigation except for a limited period in case of such exceptional nature as; is referred in the preeeding paragraphs. Question No. 3 Whether the decision reported in 1987 AWC 404 lays down a correct proposition of Law ? Answer In view of our answer to question no. 1 and 2 question no. 3 does not require to be answered, and hence returned unanswered.
(3.) DURING the course of hearing many learned Advocates advanced arguments which I shall take up one by one but before that I must deal with the FBD and see what is emerging out of it. For a better understanding of the decision, I have tried to analyse the entire judgment running into 74 paragraphs as under :- SI. No. 1. Details of reference and the question etc. 2. Objection to the reference itself by the Advocate General and the decision thereon. 3. Opinion of the Full Bench on the facts stated in the two FIR's of the two cases referred. 4. Puttan Singh's case discussed. 5. History of Section 561 OM CrPC and 482 of new CrPC. 6. Inherent powers of Allahabad High Court and inherent powers of High Courts in general. 7. Articles 141 and 372 of the Constitution of India, Advocate General's objection that no question of law survives after the decision of the Privy Council and the Supreme Court. 8. Article 226 is available to challenge investigation. 9. Both Remedies-writ petition under Article 226 of the Constitution and quashing application under section 482 CrPC ;are available. 10. Reasons for coming to the answers. 11. Answers to the questions appreciation to the lawyers assistances to the Full Bench refusing leave to appeal etc etc. 12. Quotations from Privy Council and Supreme Court decisions Paragraphs 1, 2 and 4 8, 9, 54, 56, 57, 58, 59, 60, 65, 66, 67, 69 and 70. 55 3, 5, 6, 7 and 50 10, 11, 12, 13, 25, 26, 27 and 49. 34, 35, 36, 37, 38, 39, 40, 41, 42 and 53. 14, 15, 16, 61, 62 and 63. 44, 45, 46 and 47. 48 64 67, 68, 71, 73 and 74. (I have pointed out the gist of each decision as is relevant from my point of view). (a) Khwaja Nazir Ahmad's case, AIR 1945 PC 18-charge sheet had not come. Investigation after lodging FIR was going on. ...17 (b) Lala Jai Ram's case, AIR 1945 PC 94-No power to grant bail under section 561-A when leave to appeal granted by PC after conviction was recorded by HC. ...38 (c) R. P. Kapur's case, AIR 1960 SC 866-FIR was challenged but in the meantime charge sheet had come its magistrate's court. Offence disclosed-Non interference. ...18 (d) S. N. Basak's case, AIR 1963 SC 447-FIR quashed by High Court in exercise of powers under section 459/561 (A) CrPC. Supreme Court sets aside that order. ...19 & 20 (e) S. N. Sharma's case, AIR 1970 SC 786-Magistrate can't stop investigation under section 159 CrPC. If Investigation malafide, remedy under Article 226 of the Constitution available. ...21, 22 & 23 (f) Hazari Lal Gupta's case, AIR 1972 SC 484-FIR was being investigated. Hence no interference with investigation. ...24 (g) Jahan Singh's case, AIR 1974 SC 1146-No FIR quashing possible since investigation was going on and no complaint had been filed in court ...28 (h) Kurukshetra University's case, AIR 1977 SC 2229-No charge sheet or complaint in Court. High Court quashed, FIR. Supreme Court sets aside that order inherent power not to be used. ...29 (i) Saldanna's case, AIR 1980 SC 326-Power of High Court to issue directions under Article 226 of the Constitution for using, section 173 (8) was considered. High Court's order set aside. ...30 & 31 (j) Swapan Kumar's case, AIR 1982 SC 949-High Court's order quashing FIR and investigation in exercise of powers under Article 226 of the Constitution upheld because no offence was disclosed in FIR. ...32 (k) Sampat Lal's case, AIR 198S SC 195-Some directions given by the High Court under Article 226 of the Constitution regarding investigation, set on merits by the Supreme Court. ...33 (1) Ratilal Bhanji's case, AIR 1967 SC 1639-High Court's power under section 561-A to cancel bail in bailable offence: case granted by Magistrate upheld. ...42 (m) Smt. Lilawati's case, AIR 11957 SC 521-On principles of 'ejusdem-generis' where the word 'otherwise' has been used in the statute. ...51 & 52 (n) Lala Sri Bhagwan's case, AIR 1965 SC 1767-How single Judge should make reference, judicial decorum etc. ...57 (o) 1. Bhagwan Swarup's case If law has been interpreted by Privy 2. AIR 1965 SC 682 Council or Supreme Court, it cannot 3. Kishan Chand's case asise in High Court again. 62 AIR 1965 Alld. (FB) 55 4. Director of Rationing's case, AIR 1960 SC 1355 (I may mention here that only one or two more decisions noted in the FBD is not being referred to by me here separately because they cover one or the other point summarised above and appear to be repetition only). The aforesaid analysis makes it clear that though the reasons for coming to the answers are contained in paragraph 64, the major discussion relates to the history and development of section 482 CrPC. In some paragraphs the jurisdiction under Article 226 of the Constitution has also been discussed. It is however notable that while in paragraph 27, the Full Bench has observed : " We may take it, therefore, that the decision of the Privy Council and the Supreme Court had by the year 1973 become part of the law of land and it was this law which was granted legislative approval when section 482 of the Code came into force. " and again, notwithstanding the aforesaid observation, adverting itself to the problem posed and reframed by itself in the following manner in para 49 ; "We have now to deal with the question as to whether the powers of High Court, under section 561-A of the Code of 1898 are restricted to matters which have come up before the courts or can be exercised even when the matter is under investigation by the police. and after proceeding to interpret the words used in 482 CrPC in para 53 saying : " In our view the words 'or otherwise to secure the ends of justice' occurring under section 482 of the Code has to be read as words of widest amplitude covering many contingencies which are not covered by the preceding clauses of the section 561-A in the Code of 1898 rules the contingencies in which the exercise of powers conferred may be required could not be defined exhaustively and leaving the matter to judicial discretion and determination. " and then ultimately answering i " 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 ...... any offence of any kind that the High Court may under section 482 of the Code, interfere with the investigation. " ;