Lalit Goel vs State of J. and K. and Others

Arun Kumar Goel, J.—Heard learned Counsel for the parties and have gone through the records of this case.

By means of present petition, prayer for quashing the proceedings registered against the petitioner vide F.I.R. No. 48 of 1997, dated 23-12-

1997, under Sections 420. 467 Ranbir Penal Code and Sections 3/7 Essential Commodities Act has been made.

Before appreciating the respective submissions urged by learned Counsel for the parties, brief fact s need to be noticed which are to the

following effect:

On 23-12-1997 F.I.R. No. 48 of 1997 came to be registered with Police Station, crime Branch, Jammu. Sum and substance of this report was

that the pcliiioner was illegally getting sevens of 'Liberty' trade mark prepared, then after providing PVC soles, was also getting 'Liberty Shoes'

manufactured locally. It was further alleged in . the complaint that except for soles, other material viz. leather etc was substandard. After obtaining

these Liberty Shoes, petitioner, after getting those in the packa;-;c of Liberty Shoes, was selling those shoes at (lie Prices ranging between Rs.

425/- and Rs. 525/- in the market, although he was obtaining those at the rates between Rs. 151/- and Rs. 185/- per pair. In this background and

on these allegations said F.I.R. was 0registered and police swung into action.

From the records produced by the learned Advocate General it is clear that there is a written complaint on the record and during the course of

investigation, numerous statements have been recorded. Matter was still under investigation when present petition came to be filed on 7-1-1998,

when proceedings/ investigation was ordered to be kept in abeyance till objections were filed and considered by the Court. In the meantime,

application was filed on behalf of the respondent for permitting the Stale to continue with the. investigation of the case. Objections were filed on

behalf of the petitioner to this application and the matter was heard thereon on 23-2-1998. During the course of examination of the file for

consideration of the said application, jt was felt that it would be in the fitness of things to hear the main matter itself, therefore, both the learned

Counsel were requested on 24-2-1998 to address the Court today and this is how the matter has been taken up today for final hearing.

Main thrust of learned Counsel for the petitioner is that no offence whatsoever under Essential C ommodities Act is made out against his client

as prosecution has miserably failed to show anything in that behalf Alternatively, it is submitted that Crime Branch of Police has no power to initiate

any action against his client under the Essential Commodities Act, which power only vests, according to learned Counsel for the petitioner, with

Food and Supplies Department of the State. That being so, it is forcefully urged that Crime Branch of Police lacks inherent jurisdiction to take any

action under the Essential Commodities Act. Similarly, it was pointed out that no criminal offence, whatsoever, Is either disclosed or made out on a

prima facie reading of the F.I.R. and thus it was submitted that the F.I.R. deserves to be quashed.

On the other hand, learned Advocate General submitted that F.I.R. itself prima facie discloses the commission of cognisable offences. Further,

which wing of the police investigates it, would not make any difference and petitioner cannot be permitted to say that in his case investigation

should be carried out by a particular wing of the police.

It is not in dispute that Crime Branch is one of the Wings of the State Police, that being so learned Advocate General submitted that this

objection on the part of the petitioner needs to be rejected. It has further been pointed out by Shri Salaria that on a bare reading of the F.I.R. it

cannot be said that this is a case which either does not make out a case and/or does not disclose commission of cognizable offence. Thus,

according to Shri Salaria, the petition deserves to be dismissed.

At this stage, before taking up the matter further, it has to be seen that so far investigation of a criminal offence is concerned, it is the statutory

duty of the police to do the needful, once commissjon of a cog .izable offence is brought to its; notice. In these circumstances, if the prayer made

by learned Counsel is allowed at this stage, it would tantamount to stop the police from carrying out the duty enjoined upon it under law. In a given

case, the Court is not precluded from even ordering further investigation under the Criminal Procedure Code, that being so, the argument that the

police may be restrained from proceeding with the investigation of the case or otherwise, does not hold good at this stage of the proceedings as

was urged on behalf of the petitioner. May be, after conclusion of the investigation, the petitioner be in a position to show that no case is made out

against him but at this stage to stop the police from carrying out its statutory duty would be against the purpose and intendment of legislature. For

taking this view I am supported by the decision of Apex Court reported in M/s. Jayant Vitamins Ltd. Vs. Chaitanyakumar and another, .

In, State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Apex Court had observed as under:

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers u/s

482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such

power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list

of myriad kinds of cases wherein such power should be exercised.

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 not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of

the Code.

Where the uncontroverted allegations made in the F.l.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.

Where, the allegations in the F.l.R. 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 u/s 155(2) of the Code.

Where the allegations made in the F.l.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.

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 provisions in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

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.

In, Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, , while allowing the petition filed by the complainant after

examining the case on the guidelines laid down in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, it was held that since

prima facie case is made out, therefore, High Court was not justified in quashing the F.l.R. and complaint and the case was sent back to the Court

below for trial. The Apex Court observed as under (at p. 387 of Cri IJ):--

We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the

settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the

probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in State of Haryana and others Vs. Ch.

Bhajan Lal and others, an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not

recorded such a finding. Obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that

the High Court has committed a gross error of law in quashing the FIR and the complai nt. Accordingly, we set aside the impugned Judgment and

dismiss the petition filed by Mr. Gill in the High Court u/s 482 Cr.P.C.

In the instant case, learned Counsel for the petitioner was specifically asked that as to under which of exceptions carved out in the case of

State of Haryana and others Vs. Ch. Bhajan Lal and others, his case falls, he sumitted that it is covered under sub-paras (2) and (3) thereof.

However, as already observed, a perusal of the F.l.R. does disclose commission of cognizable offences, what is the nature of such offences would

be made out after the investigation of the case is complete. Thus it would be premature to say that no case is made out on the basis of F.l.R.

against the petitioner.

In State of T.N. Vs. Thirukkural Perumal, , while allowing the appeal of State of Tamil Nadu, the Apex Court held that the power u/s 482,

Cr.P.C. (which is pari materiato Section 561A of Jammu and Kashmir Criminal Procedure Code), should be exercised sparingly, keeping in view

the guidelines laid down by the Supreme Court in various decisions and after examination of the case on the touchstone of the decision in the case

of State of Haryana and others Vs. Ch. Bhajan Lal and others, it was held that High Court was riot justified in evaluating the genuineness and

allegations made in the F.l.R. or complaint on the basis of material collected during the course pf investigation.

In State of U.P. Vs. O.P. Sharma, , it was observed by the Apex Court that:

The High Court should be loath to interfere -at the threshold to thwart the prosecution exercising its inherent power u/s 482, Cr.P.C. or under

Arts. 226 and 227 of the Constitution, as the case may be, and allow the law to take its own course.

In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, again after following the law laid down in the cases of State of Haryana and

others as well as Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, , it was observed by the Apex Court as under (at

pp. 1356-57 of Cri LJ):-

It is:thus settled law that the exercise of inherent p vyer of the High Court is an exceptional one. Great care should be taken by the High Court

before embarking to scrutinise the FIR/ charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its

inception, it first has 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 and the charge sheet is laid, the

prosecution produces the statements of the witnesses recorded u/s 161 of the Code in support of the charge-sheet. 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 effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from

the averments in the charge-sheet 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 charge-sheet. 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 acomplaint or FIR itself does not discharge at all any cognizable offence - the Court

may embark upon the consideration thereof and exercise the power.

When the remedy u/s 482 is available, the High Court would be loath and circumspect to exercise its extra-ordinary power under Article 226

since efficacious remedy u/s 482 of the Code is available. When the Court exercise its inherent power u/s 482, the prime consideration should only

be whether the exercise of 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 charge-sheet before the Court, further action should not be short-circuited

by resorting to exercise inherent power to quash the charge-sheet. The social 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 legislature entrusts the power to the police officer to prevent organised commission of the offence or offences involving moral

turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in

concept, 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 accused will have field day in destabilising the economy of the State

regulated under the relevant provisions.

In Rashmi Kumar (Smt) Vs. Mahesh Kumar Bhada, , the Hon'ble Supreme Court observed as under :

The question, therefore, whether it is a continuing offence and limitation began to run everyday loses its relevance, in view of the above finding. The

decisions cited in support thereof, viz. Vanka Radhamanohari v. Vanka Venkata Reddy AIR 1993 SCW 3595 and Balram Singh Vs. Sukhwant

Kaur and Another, hence need not be considered. It is well settled legal position that the High Court should sparingly and cautiously exercise the

power u/s 482 of the Code to prevent miscarriage of justice. In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, two of us (K.

Ramasway and S.B. Majmudar, JJ.) composing the Bench and in State of U.P. Vs. O.P. Sharma, a three Judge Bench of this Court, reviewed the

entire case law on the exercise of power by the High Court u/s 482 of the Code to quash the complaint or the charge-sheet or the first information

report and held that High Court would be loath and circumspect to exercise its extrarodinary power u/s 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 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 the exercise of the inherent power vested in the

Court. Same view was taken in State of Haryana and others Vs. Ch. Bhajan Lal and others, and G.L. Didwania and Another Vs. Income Tax

Officer and Another, .

Faced with the aforesaid situation learned Counsel appearing for the petitioner argued that the present case is aimed at simply causing

harassment to the petitioner, who according to learned Counsel is not guilty of having committed any offence, muchless those mentioned in the

F.I.R. As already observed at least F.I.R. prima facie does disclose commission of cognizable offences, therefore, this submission is not being

specifically dealt with at this stage, lest any observation may prejudice either of the parties, during the course of investigation or at any stage

henceforth.

Another circumstances in this case is that admittedly the investigation is in its infancy. It cannot be said with certainty whether any case would

be made out against the petitioner or not which, may ultimately call for his being prosecuted in a Court of law. Within fifteen days of the registration

of F.I.R. petitioner has come to Court and by an order dated 7-1 -1998, investigating/further proceedings were ordered to be put in abeyance. In

case what was urged by Shri Naik is factually correct, then it would not only be in the interest of justice but also in the interest of petitioner as well,

that his client should come unscathed and his stand is vindicated on the conclusion of the investigation. Simply because petitioner apprehends

harassment, without there being any material brought on record and/or without anything""attributed to investigating agency, it would be too much to

say that the investigating agency has any bias which may result in causing harassment to petitioner at this stage of the proceedings.

From whatever angle the case of the petitioner may be viewed, in my considered: opinion, held this is not a fit case which either calls for

quashing of the F.I.R. or stopping the investigation at this stage of the proceedings. In addition to this when the case of the petitioner is examined

on the touch stone of the decisions of the Hon'ble Apex Court discussed hereinabove,; it cannot be said that prima facie no c."".'se is made out

from the F.I.R. At the risk of repeti ion it may also be stated here that from the evidence collected so far it would not be proper to either quash the

F.I.R. or to stop further investigation, as claimed on behalf of the petitioner. Besides this, prayer of the petitioner if allowed would be contrary to

law at this stage of the proceedings, thus preventing the police from carrying out its statutory duty in accordance with law.

As a consequence of the aforesaid discussion present petition being devoid of any merit is dismissed at this stage. Interim order dated 7-1-

1998 is hereby discharged.

On the suggestion of the Court, vjarned Advocate General stated that the petitioner if he so chooses, can be ordered to be interrogated in

presence of his counsel. In view of this statement of the learned Advocate General, it is ordered that whenever the petitioner is to be interrogated

he will be informed by a written 'Hukamnama'. giving enough time so as to engage a counsel to be present with him.

Police record produced by Shri Salaria has been returned to him in the Court today. This disposes of Cr. M. P. No. 1/1998, as also Criminal

Misc. petition filed by Shri Salaria for modification of the order dated 7-1-1998.