Dalbir and Ors. vs S.H.O.,R.S.Bhogpur,Distt.Ghaziabad & Ors.

J. C. Misra, J.—This petition under Section 482, Cr. P.C has been filed for quashing the first information report dated 311297 lodged at police station Bhojpur, district Ghaziabad having case crime No. 185/1997 under Sections 177, 407,408,420 and 468, I.P.C. on the ground that the F.I.R. does not disclose any offence and the controversy is purely of a civil nature.

The learned A.G. A. raised preliminary plea that since charge sheet has not been submitted the petition is not maintainable in view of the pronouncement of the Division Bench of this Court in A.S. Bindra v. Senior Superintendent of Police & Ors., Civil Misc. Writ Petition No. 1342 of 1997 decided on 161297. The Division Bench held that the law Laid down in Full Bench decision of this Court in Ram Lal Yadava v. State of U.P., 1989 Cr. LJ. 1013: 1989 JIC (All) (FB), still holds good and no contrary view was taken by the Supreme Court.

The learned Counsel for the applicants contended that Supreme Court has held that the inherent powers of High Court can be invoked even before submission of the report under Section 173, Cr. P.C. and since any law, Laid down by the Supreme Court is law of the land it has binding effect on all subordinate Courts under Article 141 of the Constitution.

Section 482, of the Code of Criminal Procedure provides that nothing in the Code shall be deemed to limit or effect the inherent powers 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 process of any Court or otherwise to secure ends of justice.

It is an age old and well established principle that every Court has inherent powers to Act exdebitojustitiae to do that a real and substantial justice for the administration of which alone it exists or to prevent abuse of process of the Court. The Section 482, Cr. P.C. docs not confer any new or additional power as the principle, upon which it is based, was acted upon in many earlier decisions. The heading "saving of inherent powers of High Court" indicates statutory recognition of the inherent powers, which were already existing, have been preserved. It is inserted lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Court and no inherent power has survived the passing of Code of Criminal Procedure. The inherent powers of the High Court preserved by Section 482, Cr. P.C. are vested in it by law within the meaning of Article 21 of the Constitution. The procedure for invoking the inherent powers is regulated by rules framed by the High Court.

The powers under Section 482, Cr. P.C. are very wide and notwithstanding anything in the Code the inherent powers can be exercised to prevent abuse of process of Court. It was held by Full Bench decision of theSupreme Court inKrishnan & Ors. v. Krishna Veni&Anr., J.T. 1997 (1) S.C 657: 1997 JIC 406 (SC), that the inherent power of the High Court is preserved by Section 482, Cr. R.C and is very wide. However, High Court must exercise such power sparingly and cautiously, if it is noticed that there has been failure of justice or misuse of the judicial mechanism or procedure or sentence or orders is not correct, it is but the salutary duty of the High Court to prevent the abuse of process of Court or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Court in its Judicial power process or illegality of sentence or order.

The Supreme Court in the aforesaid pronouncement held that inherent powers can be exercised even if the party had unsuccessfully challenged the order in revisional jurisdiction. The scope of the inherent powers under Section 482, Cr. P.C. and exercise of the extraordinary power under Article 226 of the Constitution was considered by the Supreme Court in State of Hatyana v. Bhajan Lal, 1992 Crl L.J. 527. After considering the interpretation of the various relevant provisions of the Code of Criminal Procedure under Chapter XIV and the principles of law enunciated by the Supreme Court in a series of decisions, the Supreme Court gave a category of cases by way of illustration wherein such powers could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was, however, clarified that it may not be possible to lay down any precise, clearly defined and sufficiently chanelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised.

The category of cases in which the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 of the Code can be exercised or contained in paragraph 108 of the Judgment and aredetailed below:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do notpritna 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 F.I.R do not disclose a conjnizable 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 F.I.R. 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 F.I.R. do not constitute a congnizable 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 mala 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.

After illustrating the category of cases, the Supreme Court gave a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F. I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to Act according to its whim or caprice. The learned Counsel for the applicants contended that in categories 1 to 4, 5 and 7, the High Court can interfere with the investigation at inception as in the aforesaid category of cases investigation is wholly unnecessary.

The investigation of an offence is field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into cognizable offence is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. It was observed by the Supreme Court in State of Haryana v. Bhajan Lal (supra) a that though the Magistrate is kept in picture at all stages of the police investigation but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance as to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons, since human dignity is a dear value of our constitution.

It was held in Santa Dal v. H.S. Chaudhary & Ors., (1992) 4 SCC 305, that the inherent powers under Section 482, Cr. P.C. can be exercised by the High Court

(1) to give effect 10 any order passed under the Court, or

(2) to prevent abuse of the process of any Court; or

(3) other wise to secure the ends of justice.

The inherent power is not to be resorted to if there is specific provision in the Code for redress of the grievance of the aggrieved party, it should not be exercised as against the expressed bar of law engrafted in any other provision of the Code.

The Supreme Court held that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more, so when the evidence has not been collected and produced before the Court and issues involved whether factual or legal are of a great magnitude and cannot be seen in their true perspective without sufficient material. Of course; no hard and fast rule can be Laid down in regard to cases in which High Court will exercise its extraordinary jurisdiction of quashing the proceedingat any stage.

The Supreme Court proceeded to observe that the unrestricted and inherent powers of the subordinate Courts apart from ancillary and incidental powers in the absence of any provision to the contrary could and should be exercise exdebitojustiiiae for ends of justice, that is for taking steps as may be necessary to enable the Court in discharge of the judicial functions to issue directions or pass appropriate orders without causing prejudice to either of the parties for administering substantial justice whenever legitimate caution for doing so arise. The Supreme Court clarified that Criminal Courts are not forbidden in participating in course of investigation in the matter of collection of evidence, and in fact the Courts are insisted with statutory powers to take active role and yet the investigation in gathering evidence as contemplated under Sections 91, 93, 94, 105, 284, 156(3) 157, 159, 167(2), 190,202,164,306 etc., of the Code. The accused has however, no right to question the made of collection of evidence of the investigating agency and interfere in the progress of the investigation.

To sum up the police has got unfettered powers to investigate all cases where its suspects that a cognizable offence has been committed but High Court in appropriate case can restrain the police from misusing his legal power, if the power of the investigation has been exercised by a police officer mala fide, S. N. Sharma v. Vipin Kumar Tewari, 1970 Cr. L.J. 764 S.C. Furthermore if the first information report does not disclose the commission of a cognizable offence the Court would be justified in questioning the investigation on the basis of information as Laid down are received.

The learned Counsel for the applicant contended that the inherent powers under Section 482, of the Cr. P.C. can be invoked to interfere not only for quashing the criminal proceeding pending the Courts but also to interfere with the investigation directing them not to arrest the accused or to transfer the investigation or to regulate investigation and also to interfere with the investigation if the Investigating Officer is acting malafidefy or against rules. The learned Counsel contended that Full Bench comprising of seven Hon''ble Judges in Ram Lal Yadava & Ors. v. State of U.P. and other, 1989 Cr. L.J. 1013:1989 JIC (All) (FB), is no more good law in view of the subsequent decisions.

The aforesaid view was taken in many single Bench decision, the corretness of which was considered by a Division Bench in Criminal Misc. Write Petition No. 1342/1997, AS. Bindra v. Senior Superintendent of Police & Ors. The Division Bench was of the view that in none of the pronouncements Supreme Court has taken a contrary view and the earlier decision of seven Judges, Full Bench is still a good law.

The learned Counsel contended that in the Division Bench pronouncement, which was decided on 161297 Supreme Court decisions holdingcontrary view were not considered or were misinterpreted. He contended that since the pronouncement of the Supreme Court is law of the land in view of Article 141 of the Constitution, the Division Bench decision can be ignored and there is absolutely no necessity of even referring the matter to larger Bench.

The question is whether the Supreme Court has taken a contrary view and has held that inherent powers can be invoked even before the submission of the report or even if no order was passed by any Criminal Court.

The learned Counsel referred to the pronouncement of State of Haryana & Ors. v, Chaudhary Bhajan Lal & Ors., A.I.R. 1992 S.C. 604: 1993 JIC 534 (SC), wherein after referring to the following quotation of the Judicial, Committee in King Emperor v. Khwaja Nazir Ahmad, A.I.R. 1945 P.C.18:

"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."

It was observed that the investigation can be quashed if no cognizable offence is disclosed in the F.I.R.

The Supreme Court referred to an earlier decision in R.P Kapoor v. State of Punjab, A.I.R. 1960 S.C. 866, wherein it was held that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused person if the first information report or the complaint do not constitute the offence alleged.

Then reference was made to paragraph 101 in which observation made in State of West Bengal v. Swapn Kumar Guha, A.I.R. 1982 S.C. 949, was referred that if no offence is disclosed an investigation cannot be permitted as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty may be put to jeopardy for nothing.

Reference was also made to a later decision of the Supreme Court in Janta Dalv. M.S. Chaudhary & Ors., reported in (1992) 4 SCC 305: 1991 JIC 762 (SC), in which scope of the inherent powers of the High Court was discussed in paragraphs 125 to 158. After referring to the observations made in series of decisions relating to exercise of the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code in Bhajan Lal''s case observed" we have given certain category of cases by way of illustrations, wherein the power of quashing could be exercised either for preventing abuse of process of any Court or otherwise to secure the ends of justice stating that it may not be possible to lay down any precise, clearly defined and sufficiently chanelised inflexible guidelines, rigid formulae, to give an exhaustive list of various kinds of cases wherein such power should be exercised. We do not like to prolong the discussion on this poinl any mere".

The learned Counsel also relied on a pronouncement of the Supreme Court in Mrs. Roopan Deol Bajaj it Ors. v. Kunwar Pal Singh Gill & Anr, 1995 (32) A.C.C. 787 S.C.: 1995 JIC 1155 (SC), wherein the Supreme Court approved the earlier decision in State of Haryana v. Bhajan Lal, 1991 (28) A.C.C. 111 S.C: 1993 JIC 534 (SC), with the observation "the question under what circumstances and what categories of cases of High Court can quash a F.I.R. or a complaint in exercise of its powers under Article 226 of the Constitution of India or under Section 482, Cr. P.C. as had been engaging the attention of this Court for long. Indeed, the learned Counsel for the parties invited our attention to some of these decisions. We need not, however, refer to them as in the State of Haryana v. Bhajan Lal, (supra), this Court considered its earlier decisions, including those referred to by the learned Counsel, and answered the above question."

The learned Counsel referred to another decision of the Supreme Court in State of Tamil Nadu v. Thirukkural Perumal reported in (1995) 2 SCC 449: 1995 JIC 713 (SC), in para 4 of the decision, wherein it was observed "the power of quashing an F.I.R. and criminal proceedings should be exercised sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines Laid down by this Court in various judgments (reference in this connection may he made wiih advantage to State of Haryana v. Bhajan Lal, but the same has to be done with circumspection. The normal process of the criminal trial cannot be cutshort in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the F.I.R. or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482, Cr. P.C. seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation.

Another case that has been referred by the learned Counsel is State of Himachal Pradesh v. Pirthi Chand & Anr., (1996) 2 SCC 37: 1996 (2) JIC 1633 (SC), the learned Counsel referred to paras 12 and 13 of the judgment which are reproduced below:

"It is thus, settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/chargesheet complaint. In deciding whether the case is rarest of rare cases to scuiile the prosecution in its inception, it first had to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the chargesheet is Laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the chargesheet. At that stage, it is not the function of the Court to weigh thc/mv and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of noncompliance. It would be done after me (rial is concluded. The Court has to primafacie consider from the averments in the chargesheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further Act could be done except to quash the chargesheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or F.I.R. it self does not disclose at all any cognizable offence the Court may embark upon the consideration thereof and exercise the power."

When the remedy under Section 482 is available the High Court would be leath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercise its inherent power under Section 482, the prime consideration should only be whether the exerciseof the power would advance the cause of justice or it would be an abuse of the process of the Court. When Investigating Officer spends considerable time to collect the evidence and places the chargesheet before the Court, further action should not be shortcircuited by resorting to exercise inherent power to quash the chargesheet. The special stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilises the economy and causes grave incursion on the economic planning of the State. When the legislatureentrusts the power to the police officer to prevent organised commission of the offence or offences involving moral turpitude or crimes of gragc nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk.

The leaned Counsel also relied on the three Judges decision of the Supreme Court in Rashmi Kumar (Smt) v. Mahesh Kumar Bhada, (1997)2 SCC 397, wherein it was held that it is wellsettled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. In State of H.P. v. Pirthi Chand (supra), two of us (K. Ramaswamy and S.B. Majumdar, JJ.) composing the Bench and in State of U.P. v. O.P. Sharma, (1996) 7 SCC 70.5: 1996 JIC 541 (SC), a three Judge Bench of this Court, reviewed the entire law on the exercise of power by the High Court under Section 482 of the Code to quash the complaint or the chargesheet or the first information report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulation by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent powervested in the Court.

It is true that the police has statutory right to investigate the circumstances of any allege offence without authority from a Magistrate and this statutory power of the police to investigate cannot be ordinarily interfered by exercising inherent powers under Section 482, Cr. P.C. However, if the materials do not disclose an offence no investigation should normally be permitted Siatc of West Benqul v. Swapan Kumar Guha, 1982 Cr. L.J. 819.

In Slate of Haryana v. Bhajan Lal, similar view was taken that the investigation can be quashed if no cognizable offence is disclosed by the F. I.R.

The High Court can also interfere with the investigation, if it is convicted that the power ol investigation has been exercise by a police officermala fide, S.N. sharmav. Bipin Kumar Tewari, 1990 Cr. L.J. 764 (SC).

A question often arises that in what circumstances an Investigating Officer can be said to be acting mala fide. Mala fide means want of good faith, per sonal bias, grudge oblique or improper motive for ulterior purposes. The administrative action must be said to be done in good faith if it is, in fact, done honestly whether it is done negligently or not. An Act done honestly is deemed to have done in good faith. Thedetermination of plea of mala fide involves two questions, namely, whether there is a personal bias or an oblique motive; and (2) whether the administrative action is contrary to the objects requirements and conditions of a valid exercise of administrative power. The action taken must, therefore, be proved to have been mala fide for such considerations. Mere assertion or a vague or bald statement are not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such consideration or by fraud on power or colourable exercise of power it cannot be allowed to stand.

In judicial review of administrativeaction by S.A. De. Smith 3rd Edition at page 293 stated that "the concept of bad faith in relation to exercise of statutory powers comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. A power is exercised malaciously if its repository is motivated by his personal animosity towards those who are directly affected by its exercise. The administrative discretion means power to being administratively discreet. It implies authority to do an Act or to decide a matter on discretion. The power to Act in discretion is not power to Act ad arbitrarium. It is not a despotic power nor hedged with arbitrariness nor legal irresponsibility to exercise discretionary power in excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done brings the authority concerned in conflict with law. When the power was exercised mala fide it is undoubtedly vitiated by colourable exercise of power.

In State of Bihar v. J.A. C. Saldan, A.I.R. 1980 S.C. 326, it was held that though mala fide or bias of informant is of secondary importance if at the trial impeachable evidence disclosing offence has been brought on record.

The malice in law could be inferred from doing of wrongful Act intentionally without any just cause or excuse or without their being reasonable relation to the purpose of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused.

Thus, in these situations where the F.I.R does not disclose any cognizable offence or where the investigating agency is actingmalafide the High Court may not only stay or quash the investigation but also stay arrest of the accused. In proper cases it (High Court) can transfer investigation to another agency.

It is true that in the aforesaid situation where the F.I.R. does not disclose any offence or the investigating agency is acting mala fide in investigation of the case, the High Court has power to interfere with the investigation as also in the statutory power of the investigating agency to arrest. However save in exceptional cases where noninterference would result in miscarriage of justice the Court and the judicial process should not interfere at the stage of investigation of offences (Eastern Spinning Mills Shri Virendra Kumar Sharda & Anr. v. Shri Rajiv Poddar & Ors., A.I.R. 1985 SC 1668).

It cannot be disputed that inherent powers under Section 482, Cr. P.C. can be invoked for quashing the criminal proceeding if the police, after investigating the case, submits report under Section 173 of the Code. It is equally settled that if any subordinater Court even before submission of chargesheet passes an order it can be challenged and if found improper can be quashed either in the revisional jurisdiction or in the exercise of the inherent powers of the Court and/or not. Therefore, it the Magistrate directs the police to register and investigate the case under Section 156(3), Cr. P.C the said order can be challenged and the High Court can quash the order under Section 482, Cr. P.C. Similarly if an order is passed under Sections 82 or 83, Cr. P.C. its legality or otherwise can also be considered in exercise of the inherent powers. In such matters the extraordinary power of the writ jurisdiction cannot be invoked on account of availability of an afternative remedy.

We are, thus, left with the power of High Court in interference with the investigation or power to stay arrest in exercise of inherent power in only one situation i.e. before submission of the chargesheet/final report under Section 173, Cr. P.C.

The learned Counsel for the petitioner contended that even before the submission of chargesheet inherent power can be invoked by the High Court to interfere with the investigation and/or power to arrest the accused. This question arose for consideration before 7 Judges Full Bench of this Court in Ram Lal Yadav & Ors. v. State of UP & Ors., 1989 Cr. L.J. 1013:1989 JIC (All) (FB). The Full Bench considered the following pronouncements of Privy Council and the Supreme Court:

(1) Emperor v. Nazir Ahmad, A.I.R. 1945 P.C. 18.

(2) State of Wesi Bengal v. S.N. Basak, A.I.R. 1963S.C. 447.

(3) S.N. Sharma v. Ripen Kumar Tewari, A.I.R. 1970S.C. 786.

(4) Hazabil Gupta v. Ra.smeshwar Prasad, A.I.R.1972S.C.484.

(5) Jehan Singh v. Delhi Administration, A.I.R. 1974 S.C. 1146.

(6) State of Bihar v. J.A.C. Saldanna, A.I.R. 1980 S.C. 326.

(7) State of West Bengal v. Sampat Lal, A.I.R. 1985 S.C. 195.

(8) State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949.

(9) R.P. Kapoor v. State of Punjab, AIR 1960 S.C. 866.

(10) Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628.

After considering the ratio decidendi in the case referred to, the Full Bench concluded "in our opinion the High Court has no inherent powers under Section 482, Cr. P.C. to interfere with the arrest of a person by police officer even in violation of Section 41(1) (a), Cr. P.C. either when no offence is disclosed in the F.I.R. or when the investigation is mala fide as the inherent powers of the Court to prevent the abuse of process of Court or to otherwise secure the ends of justice comes into play only after the chargesheet has been filed in a Court and not during the investigation which may even be illegal and unauthorized. If the High Court is convicted that power to arrest by police officer will be exercise wrongly or mala fide in violation of Section 41(1) (a), Cr. P.C. the Article 226 of the Constitution restraining the police officer from misusing his legal powers.

In view of the aforesaid conclusion the Full Bench overruled the earlier Full Bench decision of 5 Judges in Prashant Gaur v. State of U.P, (F.B.) 1988 All. W.C. 823 and dissented with the Full Bench of Punjab and Haryana High Court in Vinod Kumar v. State of Punjab, AIR 1982 P & H 1972 (F.B.).

The learned Counsel contended that the aforesaid pronouncement is no more good law in view of the subsequent pronouncements of the Supreme Court, some of which were not considered by the Division Bench. He referred to the following decisions in support of his contentions.

(1) Eastern Spinning Mills Sri Virendra Kumar Sharda &Anr. v. Sri Rajiv Poddar& Ors., AIR 1985 SC 1668.

(2) State of Haryana v. Bhajan Lal, AIR 1992 SC 604,

(3) Janata Dal v. U.S. Chanel limy A On.. (1992) 4 SCC 305.

(4) State of T.N. v. Thirukkural Perunal, (1995) 2 SCC 449.

(5) State of H.P. v. Prithi Chand & Anr, (1996) 2 SCC 37.

(6) Rashmi Kumar (Smt.) v. Maliexit Kumar, 1997(2) ACC 397.

(7) State of Bihar v. Rajendra Agarwal, (1996) 8 SCC 164: 1996 JIC 363 (SC).

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 S.C. 67; J.P Sharma v. Vinod Kumar Jain, AIR 1986 S.C.; Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, (1997) SCC 397 and Mis. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., 1997 (4) Crimes 212 (SC), the question regarding interference with criminal proceeding arose after taking cognizance of the case in complaint cases. In State of U.P through C.B.I. S.P.E. Lucknow&Anr. v. R.K. Srivastava, AIR 1989 SC 2222; State of Bihar v. Raj Narain Singh, 1991 Cri. L.J. 1416; State of Himachal Pradesh v. Pirthi Chand & Anr., (1996) 2 SCC 37 and Stare of Bihar v. Rajendra Agarwal, JT 1996 (1) SC 601, the question arose only after taking cognizance of the offences on chargesheet. There is no dispute that if the Magistrate takes cognizance of offence either on complaint 01 chargesheet the inherent powers under Section 482, Cr. P.C. can be invoked to quash the proceeding. In none of the aforesaid prenouneements any observation was made by the Supreme Court to indicate that even before the submission of chargesheet or complaint the High Court can or could invoke the inherent powers to interfere with the criminal proceeding.

In Mis. Rupan Deal Bajaj & Ors. v. Kanwar Pal Singh Gill & Anr., 1995(32) ACC (SC) 787, the First Information Report and the complaint were quashed by the High Court in exercise of powers under Section 482, Cr. P.C. The Supreme Court reversed the order with the observation that in exercise of its powers under Section 482, Cr. P.C. the High Court should not have interfered with the statutory power of the police to investigation into the cognizable offence and quashed the F.I.R. especially when the allegations made in the F.I.R. unmistakably constituted offeneos under the Indian Penal Code and that this unjustifiable interference was in clear violation of the principles Laid down by this Court in a numberof decisions.

In State of U.P. v. O.P. Sharma, (1996) 7 SCC 705, the High Court had quashed the First Information Report. The Supreme Court reversed the order with the observation that at that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effectofnoncomplieance.lt would be done after the trial is concluded. The Court has loprimafacie consider from the averments in the chargesheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is madeout, no further act could be doneexcept to quash the chargesheet. But only in exceptional cases i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not discloseat all any cognizable offence the Court may embark upon the consideration thereof and exercise the power. It was further observed that when the remedy under Section 482 is available the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available.

The aforesaid observations do not at all help the petitioner and it cannot be said that any observation has been made to support the petitioner''s contention that the investigation can be interfered with in exercise of inherent powers even before the submission of report under Section 173 (2), Cr. P.C.

I have referred to the observations made by the Supreme Court in State of Haryana & Ors. v. Ch. Bhajan Lal& Ors., 1992 Cri. L.J. 527 and Janata Dal v. H.S. Chaudhary, (1992) 4 SCC 305, and other pronouncements. From none of the observations inference as desired by the learned Counsel for the petitioner can be drawn.

Thus in noneof the cases relied on by the learned Counsel it has been held that the inherent powers of the High Court can be invoked before submission of the chargesheet. Moreover, the Division Bench in A.S. Bindra''s case has after considering most of the cases held that Ram Lal Yadav ''s case is still a good law.

It is true that the Supreme Court has held that the First Information Report, if it does not disclose any offence, can be quashed both in exercise of powers under Section 482, Cr. P.C., as also extraordinary powers under Article 226 of the Constitution. The learned Counsel, in view of these decisions contended that sincesuch First Information Report can be quashed the inherent powers can be invoked even before submission of the chargesheet. This contention is without any force. Even if the criminal proceeding has started the question very often arises whether it can be quashed as the First Information Report does not disclose any offence. In case the High Court finds that the allegations if taken to be true, do not disclose any cognizable offence or even an offence, the High Court in exercise of inherent powers under Section 482, Cr. P.C. can quash the criminal proceeding as was done in State of U.P through C.B.I. S.PE. Lucknow & Anr. v. R.K, Srivastava & Ors., AIR 1989 SC 2222. In that case the High Court had quashed the proceeding as the FIR did not disclose any cognizable offence. The Supreme Court upheld the judgment of the High Court and quashed the entire criminal proceeding. It was held that it is well settled principle of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute offence, the criminal proceeding instituted on the basis of such F.I.R. should bequashed.

In one of Single Bench decisions in taking the view that inherent powers can be invoked to interfere with the investigation before submission of report under Section 173(2), Cr. P.C. reliance was placed on a pronouncement of the Privy Council in Emperor v. Khwaja Nazir Ahmad, AIR (32) 1945 PC 18. The Privy Council in the aforesaid case while concluding "in case of cognizable offence the Court''s functions begin and when a charge is preferred before it and not until then, and therefore, the High Court can interfere under Section 561A only when a charge has been preferred and not before "made a casual observation (page 22 column 2) that 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 and for this reason Newsam, J. may well have decided rightly in A.I.R. 1938 Mad. 129. But that is not this case.

The learned Single Judge in view of this observation concluded that in cases in which no cognizable offence is disclosed in the F.I.R. the High Court in its inherent powers can interfere with the investigation since it would have no authority to undertake the investigation. To understand the context in which the said observation was made by the Privy Council it would be pertinent to refer to the decision of the Madras High Court reported in AIR 1939 Mad. 129, M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillia. In that case before the Madras High Petition war. filed by a person accused of cheating to quash the proceeding against him on the ground that the complaint disclosed no offence. The High Court, however, found that the respondent Nos. 1, 2, 6 and 7 have been guilty of wilful negligence and that they are liable to make repayment under Section 235, Companies Act. The Appeal was only partly allowed.

In view of the facts of the case before the Madras High Court it cannot be said that Privy Council held that the investigation could be quashed before the submission of report if the F.I.R. discloses no cognizable offence. Since the Privy Council approved the decision of the Madras High Court it could only mean that if the matter comes to the Court proper order may be passed by the High Court in exercise of inherent powers. The learned Counsel while advancing the arguments failed to notice that Madras Court had made interference after submission of the report when the proceeding had already started. Further more, 7 Judges Bench in Ram Lal Yadav''s case considered the aforesaid decision of the Privy Council and held that inherent powers cannot be invoked before submission of report. The view taken by the Full Bench is binding on this Court and consequently it is not permissible to take a contrary decision; moreover a contrary view is also not possible. The observation made by the Privy Council was only obiter dicta which was not binding on any Court.

The leaned Counsel contended that the powers under Section 482, Cr. P.C., are very wide and the High Court can interfere with the investigation, if it is being done without jurisdiction or mala fide. For considering this argument it would be relevant to refer to relevant this provision.

The powers under Section 482, Cr. P.C., can be invoked:

(1) to make such orders as may be necessary to give effect to any order under this Code; or

(2) to prevent abuse of the process of any Court; or

(3) other wise to secure the ends of justice.

The powers to implement any order under the Code of Criminal Procedure and/or to prevent abuse of process of any Court can be exercised only after the Court has come in picture. In other words it has passed some order or had taken cognizance of any case. In the first situation no interference with the investigation can be made since the Magistrate cannot regulate much less interfere with the investigation. In the later situation the High Court cannot interfere with the investigation since Court has not come in picture and there is no question of any abuse of process of Court consequently there can be occasion to invoke inherent powers to prevent the abuse of process of Court. The question is whether in order to secure the ends of justice the investigation can be interfered with prior to submission of chargesheet. The answer is in the negative. In myopinion the words "otherwise to secure the ends of justice" cannot be given wider scope than in the other two situations. The intention of Legislature can be ascertained by applying the principle of ejusdem generis.

The learned A.G.A. contended that though the remedy of inherent powers to interfere with the investigation may not be available before the submission of the report under Section 173, Cr. P.C., but still it cannot be said that the accused are left without any remedy. He contended that if the police is investigating the case on the basis of the F.I.R. which does not disclose any offence or acting mala fide the accused can invoke extraordinary jurisdiction of the Court under Article 226 of the Constitution. In support of his contention the learned A.G.A. placed reliance on a decision of the Supreme Court in S.N. Sharma v. Bipen Kumar Tewari, AIR 1970 SC 764, wherein it was held at page 767:

"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 decision which the police dislikes. In such case 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 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 view of the above discussion I am of the view that the Supreme Court has not taken the view contrary to the view taken by Full Bench in Ram Lal Yadav v. State of UP., 1989 Cr. L.J. 1013, and therefore, no reference to any larger Bench is required to consider the correctness of the Division Bench decision in A.S. Bindra v. Senior Superintendent of Police & Ors., Criminal Misc. Writ Petition No. 1342 of 1997; decidedon 161297. The grounds to support the view which is being taken in this case may be summarised as below:

(1) The wording used in Section 482, Cr. P.C., indicates the intention of the Legislature that inherent powers can be invoked only after the Criminal Court is seized of the matter.

(2) The Supreme Court in S.N. Sharma v. Bipen Kumar Tewari& Ors., AIR 1970 SC 786, has held that the unfettered powers of police to investigate can be interfered with in appropriate cases by invoking the power of the High Court under Article 226 of the Constitution and 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.

(3) The aforesaid observation would not have been made by the Supreme Court if the investigation could be quashed in exercise of inherent powers under Section 482, Cr. P.C., as it is settled that normally extraordinary powers under Article 226 of the Constitution cannot be invoked if an afternative remedy is available.

(4) Neither any occasion ever arose to consider the question involved before this Bench nor any contrary view has been taken by the Supreme Court and consequently the ratio decidendi Laid down by 7 Judges (FB.) in Ram Lal Yadav''s case still hold good and is binding on us.

(5) I am fortified in my view by a recent decision of Single Bench in Criminal Misc. Application No. 3535 of 1997, Dr. Vijay Kumar Srivastava v. State of U.P. & Anr., decided by Hon''ble J.C. Gupta, J., on 291 98.

The petition is not maintainable and is, hereby, dismissed. Petition dismissed.