Kamlesh Kocheta vs State Of Madhya Pradesh And Others

Sanjeev S Kalgaonkar, J

This petition is filed under Article 226 of the Constitution of India for quashment of FIR dated 10/03/2026 registered at Crime no. 117 of 2026, Police Station - Neelganga, Ujjain for offence punishable under sections 318(4) and 316(5) of the BNS, 2023 and all consequential proceedings arising therefrom.

Heard learned counsel for the petitioner on I.A no. 2389 of 2026, an application seeking ad-interim stay / interim relief.

Learned counsel for the petitioner submits that from the content of the FIR, it appears that the dispute is ex facie private monetary transaction, which is civil in nature, therefore, no offence, as alleged, is made out against the applicant. Learned counsel further submits that the offence punishable under sections 318(4) and 316(5) of the BNS, 2023 are mutually exclusive therefore, they cannot be prosecuted on the same content of accusation. The petitioner is apprehending arrest in the matter, therefore, direction regarding no coercive steps be passed.

Considered.

The Supreme Court in case of NeeharikaInfrastructure(P)Ltd.v.Stateof Maharashtra, (2021) 19 SCC 401, observed as under-

As observed hereinabove, there may be some cases where the initiation of criminal the High Court, in exercise of its inherent powers under Section 482CrPC and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage i.e. quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power under Section 482CrPC is very wide, but as observed by this Court in a catena of decisions, referred to hereinabove, conferment of wide power requires the Court to be more cautious and it casts an onerous and more diligent duty on the Court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or“nocoercive steps to be taken against the accused” in the quashing proceedings under Section 482CrPC and/or Article 226 of the Constitution of India without assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the charge-sheet/final report under Section 173CrPC is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or“nocoercive steps” would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the CrPC. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad interim direction during the pendency of the proceedings under Section 482CrPC. Such reasons, however brief must disclose an application of mind.

The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the rule of law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438CrPC and on the conditions of grant of anticipatory bail under Section 438CrPC being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 CrPC can be granted on the conditions prescribed under Section 438CrPC are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438CrPC.

As observed by this Court in HemaMishrav. StateofU.P., (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438CrPC proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or“nocoercive steps” cannot be passed mechanically and in a routine manner.

So far as the order of not to arrest and/or “no coercive steps” till the final report/charge-sheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482CrPC and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.

This Court in StateofTelangana v. HabibAbdullahJeelani, (2017) 2 SCC 779 , as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482CrPC. In the aforesaid case before this Court, the High Court dismissed [HabibAbdullahJeelaniv. StateofTelangana, 2014 SCC OnLine Hyd 1299] the petition filed under Section 482CrPC for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438CrPC, albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that “it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation”. It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay.

In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482CrPC to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is observed that such orders are dehors the powers conferred under Section 438CrPC. That thereafter, this Court in para 25 has observed as under :

(Habib Abdullah Jeelani case)

“25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the

We are at pains to note that despite the law laid down by this Court in HabibAbdullah Jeelani, deprecating such orders passed by the High Courts of nottoarrest during the pendency of the investigation, even when the quashing petitions under Section 482CrPC or Article 226 of the Constitution of India are dismissed, even thereafter also, many High Courts are passing such orders. The law declared/laid down by this Court is binding on all the High Courts and not following the law laid down by this Court would have a very serious implications in the administration of justice.

In the recent decision of this Court in RavuriKrishnaMurthyv. StateofTelangana,

(2021) 19 SCC 458, this Bench set aside the similar order [MalothTarachandv. Stateof Telangana, 2016 SCC OnLine Hyd 808] passed by the Andhra Pradesh High Court of granting a blanket order of protection from arrest, even after coming to the conclusion that no case for quashing was established. The High Court while disposing of the quashing petition and while refusing to quash the criminal proceedings in exercise of powers under Section 482CrPC directed to complete the investigation into the crime without arresting the second petitioner A-2 and file a final report, if any, in accordance with law. The High Court also further passed an order that the second petitioner A-2 to appear before the investigating agency as and when required and cooperate with the investigating agency. After considering the decision of this Court in State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, this Court set aside the order [ MalothTarachandv. Stateof Telangana, 2016 SCC OnLine Hyd 808] passed by the High Court restraining the investigating officer from arresting the second accused.

Thus, it has been found that despite absolute proposition of law laid down by this Court in HabibAbdullah Jeelani that such a blanket order of not to arrest till the investigation is completed and the final report is filed, passed while declining to quash the criminal proceedings in exercise of powers under Section 482CrPC, as observed hereinabove, the High Courts have continued to pass such orders. Therefore, we again reiterate the law laid down by this Court in HabibAbdullahJeelaniand we direct all the High Courts to scrupulously follow the law laid down by this Court in HabibAbdullah Jeelaniand the law laid down by this Court in the present case, which otherwise the High Courts are bound to follow. We caution the High Courts again against passing such orders of nottoarrestor“no coercive steps to be taken” till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482CrPC and/or Article 226 of the Constitution of India.

The impugned FIR clearly mentions that the complainant was dishonestly induced by the petitioner to invest through him in property. The complainant had paid Rs. 35 lacs to the petitioner. The petitioner, instead of providing property, promised to return him the money and gave three cheques. When the complainant approached the Bank, the Bank informed that the petitioner had instructed "stop payment" of the cheques, therefore, he is deprived of the money as well as the property. In view of these contents, no case is made out for grant of ad-interim stay on investigation/ no coercive Court in accordance with law. The I.A is accordingly, dismissed.

Issue notice to respondent no. 2 on payment of process fee by RAD mode within seven working days. Notice be made returnable within three weeks.

List the matter immediately on receipt of service report. CC as per rules.