AGARWAL, J. - (1.) THIS writ petition filed under Articles 226 and 227 of the Constitution, read with Section 482 Cr. P. C. for quasning of the First Information Report (in short FIR) No. 89/87 registered at Police Station Modak.
(2.) M/s. Mangalam Cement Ltd. respondent No. 3 carries on business of manufacturing and sale of cement at Modak in Distt. Kota. The petitioner was appointed as handling and clearing agent of respondent No. 3 and he carries on business at Ghaziabad in the State of U. P. On 16tb November, 1987 a complaint was submitted on behalf of respondent No. 3 before the Munsiff and Judicial Magistrate Ramganj Mandi, wherein it has been alleged that the petitioner has misappropriated a sum of Rs. 3,75,000/-received by him on behalf of respondent No. 3 and has thereby committed offences punishable under Sections 408 and 420 I. P. C. On the said complaint the Judicial Magistrate passed an order under section 156 (3) Cr. P. C. directing the S. H. O. Police Station Modak. to register a case and submit the report after necessary investigation. On the basis of the said direction an FIR No. 89/87 in respect of offences under Sections 408 and 420 LP C. was registered at Police Station Modak on 22nd November, 1987 and the investigation was commenced by the Police. Feeling aggrieved by the aforesaid registration of the FIR and the investigation into the same by the police, the petitioner has filed this writ petition wherein he has prayed that an appropriate writ, order or direction may be issued quashing the said F. I. R. directing the S. H. O. /i. O. Police Station, Modak not to take any further steps in respect of the said F. I. R. A notice was issued to the respondents requiring them to show cause as to why the writ petition may not be admitted. In response to the said notice a reply has been filed on behalf of respondent No. 3. The petitioner has filed a rejoinder to the said reply. We have heard Shri S. C. Agarwal, the learned counsel for the petitioner, and Shri D. K. Soral, the learned counsel for respondent No. 3. At the outset, it may be stated that this writ petition has been filed at a stage when the matter is under investigation by the police and the petitioner is seeking intervention of this Court in preventing such investigation. The question as to whether and in what circumstances, the Court may inter-fere with the investigation by the police, was considered by the Judicial Committee of the Privy Council in Emperor vs. Khwaja Nazir Ahmed (I ). In that case the High Court, in exercise of its inherent powers under Section 56t-A of the Code of Criminal Procedure, 1898, had quashed the F. I. R. , which was under investigation by the police. The Privy Council set aside the said order of the High Court and held as under: "in their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. 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 the 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 cognizance 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 overlaping 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 interfere in an appropriate case when moved under S. 491, Criminal PC, to give directions in the nature of 'habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it and not until then. " In State of West Bengal Vs. S. N. Basak (2) the Supreme Court endorsed the said view expressed by the Judicial Committee of the Privy Council and set aside the order of the High Court whereby the High Court had quashed the police investigation of the case holding it to be without jurisdiction.
(3.) IN S. N. Sharma vs. Bipen Kumar Tiwari (3) the Magistrate had passed an order under sub-section (3) of Section 156 Cr. P. C. to stop investigation in a case by the police. The said order of the Magistrate was set aside by the High Court and the said order of the High Court was affirmed by the Supreme Court. The Supreme Court laid down that under sub-sec. (3) of Section 156 of the Code of Criminal Procedure, 1898,the only power given to the Magistrate who can take cognizance of an offence under Section 190 is to order an investigation and there is no mention of any power to stop any investigation by the police. After examining the provisions contained in Sections 156, 157 and 159' of the Code of Criminal Procedure, 1898 the Supreme Court held that the scheme of the said sections is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decide not to investigate the case than the Magistrate can intervene and either direct an investigation or, in the alternative, himself proceed or depute a Magistrate sub-ordiinate to him to proceed or to inquire into the case and that the power of the police to investigate has been made independent of any control by the Magistrate. The Supreme Court after referring to the observations of the Privy Council in Emperor Vs. Khwaja Nazir Ahmed (supra) has held that the interpretation placed by the Privy Council supports the view that the scheme of 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 said case, it is, however, been observed : "it appears to us that, though the Code of Criminal Procedure gives to the police infettered 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 malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. " In State of Bihar Vs. J. A. C. Saldanha (4) the High Court in exercise of its powers under Article 226 of the Constitution had quashed the order passed by the Additional Chief Judicial Magistrate whereby he did not accept the final report submitted by the police and adjourned the matter to await the report of further investigation. The Supreme Court set aside the said order of the High Court on the view that the case was at a stage where further investigation into the offence was sought to be thwarted by interference in exercise of the extraordinary jurisdiction. After referring to the decision of the Privy Council in Emperor vs. Nazir Ahmed (supra) and the earlier decision of the Supreme Court in S. N. Sharma vs. Bipen Kumar Tiwari (supra) the Supreme Court observed that unless an extraordinary case of gross abuse of power is made out by those incharge of investigation the Court should be quite loath to interfere at the stage of investigation, a field of activity reserved for police and the executive. Applying the principles laid down in the aforesaid decisions it is necessary to examine as to whether this is a case in which the power of investigation has been exercised by the Police Officer malafide or this is extraordinary case where there is a gross abuse of power by those incharge of investigation. In this regard, it may be mentioned that the investigation is being conducted by the police after registering the case on the basis of the order passed by the Judicial Magistrate under Section 156 (3) Cr. P. C. directing the S. H. O. , Police Station Modak to register the case and to submit the report after investigation. It cannot be said that the said order of the Judicial Magistrate is vitiated by malafide and therefore, it cannot be said that the power of investigation is being exercised by the police malafide or this is an extra ordinary case of gross abuse of power by those incharge of investigation. ;