- (1.) ONE Shri Nandlal Sevaramani as Manager, Planning and Sales, of M/s. R. G. Ispat Ltd. Jaipur lodged a written report with the Superintendent of Police Jaipur, City Jaipur against M/s. Appolo Freight Carriers C-2 alleging therein that on 12. 7. 1991 certain items of Alloy Castings and Joy Plates (10 Metric Tonnes worth Rs. 1,80,000/- (Rs. ONE Lac, Eighty Thousand only) were given to M/s. Appolo Freight Carriers for being given at some place in Calcutta. These items were received by Driver-Madan Singh of Appolo who appended his signatures on the Challan No. 128 dated 12. 7. 1991. It is alleged that these items were not delivered to M/s. Raja Engineering Company and were retained by M/s. Appolo Freight Carriers. It was a detailed F. I. R. and on the basis of this F. I. R. dated 2. 4. 1992 a case u/s. 407 I. P. C. was disclosed and registered and thereafter police started investigation.
(2.) ON 24. 9. 1992 a bail application that is S. B. Criminal Misc. Bail Application No. 4251/92 u/s. 438, Cr. P. C was filed by the present petitioner before this Court seeking an order of anticipatory bail with regard to the offence u/s. 407, I. P. C. in relation to F. I. R. No. 214/92 of Police Station Vishwakarma, Jaipur. When the matter came before the Court on 25. 9. 1992 on behalf of the petitioner, Mr. Subhash Agrawal appeared, the learned Additional Public Prosecutor was not present and the Court directed the petitioner to appear before the Investigation Officer on 3. 10. 1992 with the mention that any information which the petitioner may disclose will be treated as an information u/s. 27 of the Indian Evidence Act and the Investigation Officer may send his report to the Additional Public Prosecutor along with the case diary within a week thereafter and the matter was directed to be listed for orders on 13. 10. 1992 and it was further ordered that in the meanwhile the petitioner shall not be arrested. ON 15. 10. 1992 the counsel for the petitioner and the complainant agreed before the Court that an attempt be made for compromise between the parties after calling them in the Court and accused and complainant were directed to be present before the Court on 30. 10. 1992 and the bail application was directed to be listed on 30. 10. 1992 and the interim-order was continued. ON 30. 10. 1992 the matter was list before this Bench and a prayer was made that this matter may be listed on 3. 11. 1992 before the bench which had passed the earlier orders and accordingly it was ordered that the matter may be listed before Hon'ble N. L. Tibrewal J. as prayed on 3. 11. 1992 and in the meanwhile the interim-order was continued. ON 10. 12. 1992 it was again ordered that the matter may be listed before Hon'ble N. L. Tibrewal J. as already ordered earlier on 30. 10. 1992 and the interim-order was again continued and the matter was posted for 18. 12. 1992. ON 11. 1. 1992 Hon'ble N. L. Tibrewal J. ordered that he was not having the roster of bail applications and, therefore, the matter may be listed before the regular bench and the interim-order was continued till the next date. Thereafter the matter came up before this regular bench hearing bail applications u/s. 438, Cr. P. C. on 25. 1. 1993 and Mr. B. L. Sharma, Advocate who appeared as counsel for the petitioner made a statement under instructions of his client who was also present and gave an undertaking to return the entire goods of the complainant M/s. R. G. Ispat within a period of 2 weeks and that it should be left open for him to realize the godown charges from the complainant by filing a regular suit. It was also submitted that the complainant may approach Mr. Shambhu Dayal Agrawal that is the present petitioner or his father for the return of the goods on 7. 2. 1993 and the bail application was posted for 9. 2. 1993 and the interim-order was continued. As this juncture on 4. 2. 1993 the petitioner preferred the present writ petition under Article 226 of the Constitution of India with the prayers as under : - " (1) by an appropriate writ, order or direction to quash the investigation of the case in FIR No. 214/1992 registered against the petitioner at Police Station Vishwakarma, Jaipur; (ii) by an appropriate writ, order or direction the non-petitioners be directed not to harass the petitioner and he may not be arrested in FIR No. 214/1992 registered against the petitioner at Police Station Vishwakarma, Jaipur; (iii) by an appropriate order, writ or direction and other suitable order which this Hon'ble Court may deem fit in favour of the petitioner may kindly be passed in the facts and circumstances of this case; (iv) writ petition be allowed with cost. The matter came up before the regular bench hearing such writ petitions on 8. 2. 1993 and it was recorded on 8. 2. 1993 by the Court that both the learned counsel submit that the Cr. Misc. Bail Application No. 4251/1992 (Shambhu Dayal Agrawal Vs. State of Rajasthan & Ors.) was fixed for arguments on 9. 2. 1993 before this bench and this matter is connected with that case i. e. bail application. The Court directed that in these circumstances this writ petition may be listed before the said Court tomorrow that is 9. 2. 1993 and this is how this petition has been listed before this bench today for admission. Mr. M. M. Mehrishi has entered Caveat in this case on behalf of the non-petitioner No. 4 that is Nandlal Sevaramani. The above referred bail application No. 4251/92 is also listed before me today in which Mr. Mehrishi has filed an application u/s. 482, Cr. P. C. for taking documents on record and along with this application which is supported by an affidavit he has filed three documents and as per this affidavit the complainant Nandlal Sevaramani' (who is the Caveator in this writ petition) has stated that he along with the employees of his firm had gone to the accused-petitioner; Shambhu Dayal Agrawal on 7. 2. 1993 but the office and the godown were found to be closed. After waiting for about 2 hours he telephoned Mr. Shambhu Dayal Agrawal at his residence and was told by the person attending the phone on the other end that Mr. Shambhu Dayal Agrawal at his residence and was told by the person attending the phone on the other end that Mr. Shambhu Dayal Agrawal and his father have gone out of Jaipur. Mr. Sevaramani has further stated in that affidavit that thereafter, he telephoned Mr. Banwarilal Sharma, Advocate at his residence but he too was reported to be out of Jaipur. Therefore, he sent a telegram to Mr. Shambhu Dayal Agrawal and his Advocate. It has been further submitted by Mr. Sevaramani in the affidavit that on 3. 2. 1993 he had sent a registered letter to Mr. Shambhu Dayal intimating him that he will be reaching his office/godown on 7. 2. 1993 as per orders of the Court at 10. 30 a. m. This registered letter and A. D. of the registered letter had also been received back by him on 8. 2. 1993 and despite the undertaking given by the petitioner on 25. 1. 1993 the goods have not been delivered back. It is not necessary for me to deal with all these submissions so far as the present writ petition is concerned. However, Mr Mehrishi has raised an objection that this writ petition for the purpose of quashing of the investigation of the case in FIR seeking a direction against the petitioner's arrest in this FIR is not maintainable under Article 226 of the Constitution of India and the same deserves to be dismissed on this ground alone. Mr. Mehrishi has placed reliance on 1992 SCC (Suppl. 1) p. 222 and another and yet another decision reported in this very volume that is 1992 SCC (Suppl. I) 335 (2) and has submitted that this Court should not entertain this writ petition. Mr. Arvind Kumar Gupta has submitted that in the facts of this case the dispute is essentially of civil nature and further that the averments made by him in the writ petition and the documents enclosed therewith would reveal that it is a civil dispute which has been sought to be converted into a criminal case and otherwise no criminal liability is entailed against the petitioner on the basis of the First Information Report which has been lodged in this case against the present petitioner and, therefore, it is a fit case in which this Court may interfere at this very stage and the Investigating Agency should not be allowed to continue with the investigation any more and whatever proceedings have been held so far may also be quashed. Mr. Arvind Kumar Gupta has also placed reliance on State West Bengal and others Vs. Swapan Kumar Guha and others, Madhavrao Jiwaji Rao Scindia and Another vs. Sanbhaji Rao Chandroji Rao Angre & others et. (4) and State of U. P. and another Vs. R. K. Srivastava and others (5 ).
(3.) SO far as AIR 1989 SC p. 2222 & AIR 1988 SC p. 709 (supra) are concerned these are the cases dealing with the petitions filed u/s. 482, Cr. P. C. However, in State of West Bengal and others Vs. Swapan Kumar Guha and others (supra) relied upon by Mr. Arvind Kumar Gupta, I find that it was a case arising from a writ petition filed in the High Court under Article 226 of the Constitution of India and the Supreme Court has held that where the FIR does not disclose the commission of any cognizable offence the High Court is justified in quashing the investigation. The relevant observations from the aforesaid Supreme Court's decision in State of West Bengal Vs. Swapan Kumar Guha (supra) are reproduced as under: - "21. The position which emerges from these decisions and the other decisions which are discussed by Brother A. N. Sen is that the condition precedent to the commencement of investigation under S. 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an un-fettered discretion to commence investigation under S. 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F. I. R. , prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed 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 the 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 or received. 54. 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. 65. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. In considering whether an offence into which an investigation is made or to be made, is disclosed or not, the Court has mainly to take into consideration the complaint or the F. I. R. and the Court may in appropriate cases take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to the conclusion whether an offence is disclosed or not. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and un-necessary harassment to an individual. " Thus, in view of the aforesaid decision of the Supreme Court and the observations made therein, it can't be said that no writ petition in this regard is maintainable. It is a question to be decided on the facts and record of each case. Even 1992 Suppl (I) SCC p. 222 (supra) which has been cited by Shri Mehrish does not lay down that such writ petitions are not maintainable. Of course it was a case in which the writ petition had been filed for quashing the criminal proceedings at the stage anterior to trial Court's decision on taking cognizance of offence on the basis of the police report and the High Court treating the affidavits filed and the documents produced before it by the petitioner-accused as evidence quashed the proceedings and the Supreme Court held that the High Court committed the serious error in putting an end to the prosecution at its inception by going into the merits at a pre-trial stage on consideration of the affidavits and documents which, unless proved to be true and reliable in regular trial, could not form the basis of any decision regarding commission of the offence. The other decision relied upon by Shri Mehrish that is 1992 Suppl (I) SCC p. 335 (supra) lays down as to when the criminal proceedings are quashed by the High Court in exercise of the powers u/s. 482, Cr. P. C. and Article 226 of the Constitution of India and the circumstances have also been given by way of illustrations. Shri A. K. Gupta has enumerated the categories of cases by way of illustrations wherein, the extra-ordinary powers under Article 226 of the Constitution of India and the inherent powers under Section 482, Cr. P. C. can be exercised by the High Court either to prevent the abuse of the process of the Court or otherwise secure the ends of justice and the categories illustrated by the Supreme Court are as under: - " (1) Where the allegations made in the fir first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the F. I. R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with male fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " Therefore, I do not find any substance in the preliminary objection raised by Shri Mehrish that the petition in this case is not maintainable and the preliminary objection is hereby rejected. ;