- (1.) B. N. Katju, A. C. J. These are six applications under Section 482 Cr. P. C. praying that the First Information Report and the investigation on its basis be quashed and the opposite parties be directed to release the goods seized in favour of the applicants and the opposite parties be also directed not to arrest the appli cants in pursuance of the First Information Report during the pendency of the applications. The learned Single Judge who heard these applications was of the view that the answers given by the Full Bench in the case of Prashant Gaur v. State ofu. P. , 1988 AWC 828 : (1989 JIG 147) (FB) to the questions referred to it with respect in the power of this Court to interfere with the investigation by the police did not appear to be in accordance with the law laid down by the Supreme Court and the Privy Council.
(2.) THE questions referred to the Full Bench in the case of Prashant Gaur v. State of U. P. , (supra) and the answers given with respect to them are as follows : Question No. 1. Whether under Section 482, Cr. P. C. the High Court has inherent power 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 F. I. R. 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. Question No. 2 Whether the High Court has powers to stay arrest during investigation. Answer No. 2. Under Section 482 of the Code, the High Court, during not direct the stay of arrest investigation except for a limited period in case of such exceptional nature as is referred in the proceed ing paragraphs. Question No. 3 Answer Whether the decision reported in 1987 A. W. C. 404 lays down a correct proposition of law? Answer 3. In view of our answer to questions Nos. 1 and 2, question No. 3 does not require to be answered and hence returned unanswered. The learned Single Judge has accordingly referred the under mentioned questions for consideration by a larger Bench : - ]. Are the answers to the questions Nos. 1 and 2 given by the Full Bench and the reasons for recording those answers, in accord with the law laid down by the Hon'ble Supreme Court and the Privy Council ? 2. If the answer to above question is not in the affirmative, then what is the correct answer to the questions posed before the Full Bench? 3. If no answer is thought necessary for any reason to the question No. 2, above, then correct legal position with reference to Puttan Singh's case may be laid down. We are required to answer these questions. 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 consider ed 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 everyone 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 providence 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 appro priate case when moved under Section 491, Cr. 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 pre ferred 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 30. 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 has survived the passing of that Act. No Debt, 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. Basok, AIR 1963 SC 447, it was held : At the time the respondent filed 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. Sec. 154 which is in that Chapter deals with information in cognizable offences and Section 156 with investigation into such offences and under these 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 inter-ferred 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 5. A'. Sharma v. Bipen Kumar Tewari, 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. In the case of Hazari Lal Gupta v. Rameshwar Prasad, AIR 1972 SC 434, it was held :- The inherent power of the High Court under Section 56i-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 I960 SC 860 and State of West Bengal v. S. N. Basak, (1963) 2 SCR 52 : AIR 1963 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 lo the institu tion 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 circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investi gation because it would then be impeding investigation and jurisdic tion of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. In the ease of Jehan Singh v. Delhi Administration, AIR 1974 SC 1146 after referring to the case of Stale 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, AIRU977 SC 2229, it was held : - It surprises us in the extreme that the High Court though 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 F. I. R. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The 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 charge 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 took. 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 investi gation 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 it 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 ist subsequent adjudication between the police and the Magistrate. And the decision of the Privy Council in the case of Emperor v. Khwaja 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 interferenced by the court into police investigation has not been approved. And the decision of the Privy Council in the case of Emprior v. Khwaja ,/, 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. Saldane (su pra) were approved. 6. It is thus settled law that the power of the police to investigate into a report which discloses the commission of a cognizable offence is unfettered and cannot be interfered with by this Court in exercise of its inherent powers under Section 482, Cr. P. C. 7. The question that requires determination is whether an investigation can be quashed in the exercise of the inherent powers of this court under Section 482, Cr. P. C. if no offence is disclosed in the first information report. 8. It is noteworthy that in the case of Emperor v. Khwaja Nazir Ahmad iprn) although it was held : - 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. h was not held therein that if no offence is disclosed the investigation can be quashed by the High Court in the exercise of its inherent powers under Sec tion 561-A, Cr. P. C. , 1898 which corresponds to Section 482, Cr. P. C. , 1973. On the other hand, it was held therein : - 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 exercise its own function, always of course, subject to the right of the court to intervene in an appropriate case when moved under Sec tion 491, Criminal Procedure Code, to give directions m the nature of habeas corpus Which goes to show that if the police undertook an investigation when no offence of any kind was disclosed in the first information report the only remedy that was available was under Section 49 7-A, Criminal Procedure Code, 1898 in the nature of habeas corpus, it thus appears that the inherent power of this Court to prevent the abuse of the process of court or otherwise to secure the ends of justice come into play only after charge-sheet against an accused is filed in court and not till then even in cases where the police wrongly investigates into a report which does not disclose the commission of any offence. It is significant to note that in the case of State of West Bengal v. Swjpan Kumar Guha, AIR 1982 SC 949, the writ petition under Article 226 of the Constitution filed by the Firm and its partners for quashing an investigation commenced against the Firm was allowed by the Calcutta High Court and a writ of mandamus was issued directing i''0 State Government and its concerned officers to forthwith and recall the first information report and all proceedings taken on the basis thereof and the appeal filed by the State of West Bengal against the aforesaid decision was dismissed by the Supreme Court and 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 F. I. R. It shall also have been noticed, which is sometimes overlooked, that the ('rivy Council took care to qualify its statement of the Jaw 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 The position which emerges from these decisions and the other decisions, which are discussed by Brother A. N. Sen is that the condition prece dent to the commencement of investigation under Section 157 of the Code is that the F. J. . R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Sec tion 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable and they cannot, reasonably, have reason so to suspect unless the F. I. R. , prima facie, discloses the commission of such offence. If that condi tion is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmad will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if F. I. R. does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid down or received. 9. Thus, if the first information report does not disclose the commission of an offence the investigation on the basis of such a report is liable to be quashed under Article 226 of the Constitution and not in the exercise of the inherent powers of the High Court under Section 482, Cr. P. C. It may be mentioned that Section 491, Cr. P. C, 1898 has been repealed by the Code of Criminal Procedure, 1973. 10. It is also noteworthy that in case of. V. N. Sharma v. Bipen Kumar Tewari and otters (supra), it was held : - Counsel appearing on behalf of the appellant urged that such an inter pretation 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 dislikes. 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 Article 226 of the Constitution under which, if the High Court could [- convinced that the power of investigation has been exercised by a police officer mala fide, the High coua can always issue a jit of mandamus restraining the police officer from misusing his legal powers. '' 11. It is thus clear that if the power of investigation is exercised by a police officer mala fide the High Court cannot quash the investigation in the exercise of its inherent powers under Section 482, Cr. P. C. but can do so under Article 226 of the Constitution. 12. . In the case of R. P. Kapur v. State of Punjab, AIR 1960 SC 866, it was held : - Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent powers of the High Court under Sec tion 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of the court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the Magistrate before whom the police report has been filed under Section 173 of the Code has y. 't not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the proceeding the High Court would be justified in quashing the pro ceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the com plaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind that distinction between a case where is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not, That is the function of the Trial Magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appre ciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. The aforesaid observations are obviously applicable to proceedings in court after the submission of a charge-sheet or a complaint but are not applicable to investigation before the submission of the charge-sheet in court when proceed ings for collection of evidence are conducted by a police officer. It is true that in the case of Pratibha Rani v. Suraj Kumar and another, AIR 1985 SC 628. It was held : We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482, Cr. P. C. to quash a F. I. R. or a com plaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. It case no offence is committed on the allegation and the ingredients of Sections 405 and 406,i. P. C. are not made out, the High Court would be justified in quashing the proceedings. We are, however, clearly of the opinion that the power of the High Court under Section 482, Cr. P. C. to quash a first information report or a com plaint referred to above is with reference to proceeding in court after the filing of a charge-sheet or a complaint and not to investigation prior to the filing of the charge-sheet in court. In the case of Vinod Kumar Sethi and others v. State of Punjab and another, AIR 1982 P and H 372, after referring to the passage from the case of S. N. Sharma v. Bipen Kumar Tewari (supra) quoted earlier, it was held : - ''i, however, see no reason why the identical relief cannot be accorded in the exercise of the inherent powers under Section 482 of the Criminal Procedure Code. Indeed, the language of this provision is of a wider amplitude To conclude, I see no blanket bar against the quashing of a first informa tion report and consequent investigation (even before a charge-sheet is filed in Court), provided that the requisite pre-conditions formulated above for the exercise of the power stand satisfied. Without being exhaustive, those may be briefly summarised as under -. (i) When the First Information Report, even if accepted as true, dis closes no reasonable suspicion of the commission of a cogni zable offence (ii) when the materials subsequently collected in the course of an investigation further disclose no such cognizable offence at all (iii) when the continuation of such investigation would amount to an abuse of power by the police thus necessitating interference in the ends of justice and (iv) that even if the first information report or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can still quash if it is convinced that the power of investigation lias been exercised With great respect we are not in agreement with the view taken in the case of Vinod Kumar Sethi and others v. State of Punjab and another (supra), as it is in conflict with the decisions of the Privy Council in the case of Emperor v. Khawja Nazir Ahmad (supra) and the Supreme Court in the case of Stale of West Bengal v. Swapan Kumar Guha (supra) and also for the reasons given by us earlier. The High Court thus has no inherent power under Section 482, Cr. P. C. to interfere with the investigation by the police. Section 41 (l) (a), Cr. P. C. is as follows : 41 (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person - (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists, of his having been so concerned. 20. Section 41 (l) (a), Cr. P. C. thus confers power on a police officer regarding the arrest of a person with respect to a cognizable offence. This statutory power is exercised by a police officer during the investigation of a cognizable offence. It is a step in investigation as the accused is interrogated after his arrest and at times the interrogation of the accused leads to important discoveries which connect him with the crime and are admissible under Section 27 of the Evidence Act and the involvement of other persons in the crime is also known. The power of the police to arrest a person under Section 41, Cr. P. C. cannot thus be interfered with by this Court in exercise of its inherent powers. 21. In our opinion the High Court has no inherent power under Section 482, Cr. P. C. to interfere with the arrest of a person by a police officer even in violation of Section 41 (l) (a), Cr. P. C. either when no offence is disclosed in the first infor- mation report or when the investigation is mala fide as the inherent powers of the court to prevent the abuse of the process of the court or to otherwise secure the ends of justice come into play only after the charge-sheet has been iiied in court and not during investigation which may even be illegal and unauthorised. If the High Court is convinced that the power of arrest by a police officer will be exercised wrongly or mala fide in violation of Section 41 (1 ) (a), Cr. P. C. the High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer from misusing his legal power. 22. In the case of Put tan Singh v. State of U. P. (supra), it was held : - The first information report lodged by Sheo Nath Singh discloses the commission of a cognizable offence and also the complicity of the applicant in it. The police thus has statutory power under Section 156, Cr. P. C. to investigate the case registered on the basis of the aforesaid first information report without any interference by this Court in the exercise of its inherent powers. . . . This Court, therefore, has no jurisdiction to direct a police officer not to arrest the applicant during the pendency of the investigation of the case registered on the basis of the First Information Report lodged by Sheo Nath Singh against the applicant and others which discloses the commission of a cognizable offence in the exercise of its inherent powers under Section 482, Cr. P. C. 23. In our opinion the case of Puttan Singh v. State of U. P. , 1987 AWc 404 was correctly decided : (i) For the reasons given above our answer to the first question referred to us is in the negative. (ii) Our answer to the second question referred to us is that the High Court has no inherent power under Section 482, Cr. P. C. to interfere with the investigation by the police. The High Court has also no inherent power under Section 482, Cr. P. C. to stay the arrest of an accused during investigation. The decision by the Full Bench in the case of Prashant Gaur v. State of U. P. (supra), does not lay down correct law and is overruled. (iii) Our answer to the third question referred to us is that the decision in the case of Puttan Singh v. State of U. P. (supra) is correct. 24. Let the record of the cases be placed before the learned Single Judge with our answers to the questions referred to us. Order accordingly. .;