Bhaskar Bhattacharya, J.
1. By this writ application, the writ petitioner has prayed for quashing of FIR registered on June 14, 1999 and the consequential investigation in CBI/ SPE/ ACB/Calcutta Case No. RC 18/99 under Sections 120B/420/468/471/ 477A of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. The facts giving rise to the filing of the instant writ application may be summarised thus :
a) The petitioner was entrusted by the Eastern Railways to do various works as per diverse contracts sometimes in the year 1986. Ultimately, disputes arose as to the amount payable to the petitioner by virtue of those contracts and consequently the differences were referred to arbitration in terms of Arbitration and Conciliation Act, 1996. By an order dated May 8, 1998 the then Hon'ble Chief Justice appointed Justice Anil Kumar Sen, a retired Chief Justice of this Court, as the sole Arbitrator in respect of all the 26 applications filed by the petitioner.
b) On August 31, 1998, the learned Arbitrator allowed the claims of the petitioner in full and passed awards amounting to Rs. 32,83,36,357/-including interest.
c) Thereafter, on December 10, 1998 the Railway Authority filed 26 applications under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside those 26 awards. In course of hearing of such applications under Section 34 of the Act, the Railway Authorities for the first time alleged that no contract was executed between the parties and that the petitioner did not execute any work whatsoever and that the petitioner had committed forgery and was guilty of fabricating documents. It was further alleged that the petitioner influenced some of the officials of the railways and in collusion and conspiracy with them procured the award.
d) Subsequently on the complaint of the Railway Administration, the Central Bureau of Investigation (CBI) has registered a case being No. R.C. 18 of 1999 dated June 14, 1999 against the petitioner and some railway employees. The sum and substance of the complaint is that on verification of the signatures in the tender papers, it was found that the signatures, other than those of two officers, were not genuine and that one of them was not available in the station and was attending a foreign training in U.K. It was further alleged that seals and stamps available with the letters of the contractor said to be deposited with the Railway Authority are not genuine because such type of seal or stamp was not used by the Railway Receipt Section of the concerned offices.
e) It is further alleged that the source of Ballast supply to railway was not capable to undertake delivery of such huge quantity within a short period of 3/4 months. It was further asserted that signature of one of the P.W. It was fake and that of two others were found to be visually fake.
3. By this writ application, the writ petitioner has prayed for quashing of the aforesaid FIR mainly on the ground that before lodging such complaint on 24th May, 1999, which was registered on 14th June, 1999, the Railway Authority earlier lodged two other complaints before the CBI, one in the month of October, 1998 and other in the month of March, 1999 but the CBI after investigation having found no merit in those complaints, did not proceed any further. According to the petitioner the sole object of the respondents is to get rid of 26 awards given against the Railway Authorities. It is pointed out that a learned Single Judge of this Court has rejected all the applications filed under Section 34 of the Act and against those decisions, 26 appeals are pending before the Division Bench of this Court.
4. It is further emphasized that it appears from the record that the Railway Authority requested the CBI to prepare a preliminary report against the petitioner to impress upon the Division Bench of this Court that those awards were passed on the basis of procured evidence so that the awards are set aside. The petitioner, thus, prays for quashing the FIR not only on the ground of malevolence but also on the ground that earlier two complaints having already been lodged, no investigation can continue on the basis of the FIR registered on June 14, 1999 which is the third complaint.
5. The Railway Administration although has been added as respondent and contesting the proceedings has not come forward with any affidavit-in-opposition but this writ application is opposed by CBI by filing affidavit-in-opposition. In the affidavit-in-opposition, the CBI has even though disputed the allegations contained in the writ application but the specific allegations made in paragraph 56 of the writ application that investigation had started on the basis of third complaint has not been specifically dealt with by the CBI Authority.
6. Mr. Saktinath Mukherjee, the learned Senior Counsel appearing on behalf of the petitioner strenuously contended that the investigation proceeded on the basis of third complaint should be quashed. He has further contended that as it appears from the materials on record, there was prior discussions between the complainant viz. Railway Administration and the investigating agency viz. CBI as would appear from the letter dated March 23, 1999 written by CBI referred to in the complaint dated May 24, 1999 and such being the position, this Court should immediately quash the entire proceedings being a travesty of justice.
7. Mr. Mukherjee further contends that by Section 34 of the Arbitration and Conciliation Act, 1996 specific jurisdiction having been conferred upon the Court to adjudicate whether by practising fraud any award has been obtained and in spite of such plea, a learned Single Judge of this Court having turned down such prayer and maintained the awards, there is no scope of further criminal investigation on the self-same issue. Mr. Mukherjee, in this connection, submits that a finding on such a question in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 was arrived at by the Court and a learned Single Judge having already found that no case of fraud has been proved, a fresh criminal investigation cannot be initiated at this stage on the identical issue. Mr. Mukherjee points out that even in civil proceeding the party alleging fraud must establish the existence of such fraud beyond reasonable doubt. Thus, Mr. Mukherjee continues, if no fraud is established in the civil proceedings beyond reasonable doubt, it will be an abuse of process of law to permit continuation of criminal investigation to prove the self-same fact over again with same standard of proof. In support of all such contentions, Mr. Mukherjee principally relies upon the following decisions of the Supreme Court:
3. S. N. Sharma v. Bipin Kumar Tewari and Ors., .
4. State of Bihar and Anr. v. J.A.C. Saldhana and Ors., .
5. State of A.P. v. Punati Ramulu and Ors., (1994) Suppl. (1) SCC
8. Chandra Pal Singh and Ors. v. Maharaj Singh and Anr., .
8. Mr. Ranjan Roy, the learned Counsel appearing on behalf of the CBI, has vehemently opposed all the aforesaid contentions of Mr. Mukherjee. As regards the allegation of the petitioner that the present investigation has been initiated on the basis of the third compliant after submission of previous two, Mr. Roy contends that it is now settled position of law that even if it is established that investigation has commenced on the basis of second or third complaint, that fact alone cannot be a ground for quashing of FIR. In support of such contention Mr. Roy placed reliance upon the following decisions of the Supreme Court :
3. Kari Choudhary v. Sita Devi and Ors., 2000(2) SCC (Cri.) 269.
9. Regarding the delay in sending the copy of FIR to the Magistrate, Mr. Roy contends that such delay does not render the entire prosecution of the case doubtful nor can such fact enable this Court to quash the entire prosecution. Mr. Roy contends if there is delay in sending the copy that fact would put the Court on guard and the delay must be reasonably explained at the time of trial. In case of non-explanation of delay, Mr. Roy contends, Court should be cautious and is under obligation to examine the prosecution version minutely to ensure that there was no false implication of innocent person. In support of such contention, Mr. Roy relies upon the decision of the Supreme Court in the case of Bijoy Singh and Anr. v. State of Bihar, reported in 2000(3) SCC (Cri.) 1093.
10. As regards the prayer of quashing of the FIR, Mr. Roy contends that an FIR can be quashed only if it is established such FIR does not disclose any offence. Once it is established that the FIR, if found to be true, constitutes an offence, the Court cannot quash that FIR at investigation stage. As regards the allegation of mala fide intention, Mr. Roy contends that once the FIR discloses an offence punishable under law, the plea of malice cannot be scrutinized at investigation stage. Mr. Roy contends that if the contention of Mr. Mukherjee that in case of allegation of mala fide intention, the Court should examine such allegation before actual trial is accepted, there will be one round of pretrial of the offence alleged and in the process, the prosecution will be compelled to disclose materials beforehand thereby giving an opportunity to the accused to tamper with the evidence or to manufacture suitable defence. According to Mr. Roy the latest trend of the Supreme Court decisions show that at the investigation stage a prosecution can be quashed only if it is established that the FIR does not disclose any offence. Mr. Roy contends that in this case, these is no dispute that in FIR serious allegations have been made on fraud and collusion and consequently, the petitioner has illegally gained huge amount of money. He further submits that it has come in evidence during investigation that the petitioner has produced forged documents and the signature of the railway officials appearing on the documents are also forged. Therefore, in such a situation, there is no scope of quashing the investigation. Mr. Roy points out that the prosecution has already prepared chargesheet but the same could not be filed in view of interim order granted in this case. Mr. Roy further contends that once investigation is completed, even if there is defect in FIR, that loses its importance and, thus, his client should be permitted to file the chargesheet and the petitioner should take part in criminal trial where he will be entitled to agitate all the points taken in writ application in defence, but there is no reason why the petitioner should not face the trial.
11. As regards other question of pendency of civil dispute and the finding recorded by the learned Single Judge upholding the awards, Mr. Roy submits that it is now settled position of law that even if there is pending civil litigation that fact cannot come in the way of the simultaneous proceeding in Criminal Court. In support of such contentions Mr. Roy places reliance upon the following decisions :
2. Kamala Devi Agarwal v. State of West Bengal and Ors., .
12. Lastly, Mr. Roy contends that the question of the alleged evil intention cannot be decided in this writ application on the basis of affidavit. If the petitioner alleges improper motive, it is for the petitioner to prove such fact and such fact should be adjudicated at the time of criminal trial. He reiterates that there cannot be a pre-trial of such issue on the basis of affidavits and documents at the instance of parties thereby causing unnecessary delay in the criminal trial. Mr. Roy, in this connection, places strong reliance upon the observation of the Supreme Court in the case of State of Bihar and Ors. v. P.P. Sharma, reported in 1992 (Suppl.)1 SCC 222, Mr. Roy, thus, prays for dismissal of the writ application.
13. Mr. Kapoor, the learned Counsel appearing on behalf of the Railway, has adopted the submission of Mr. Roy and has supplemented such argument by relying upon the following decisions :
14. The sum and substance of contentions of Mr. Kapoor is that once, it is established that the FIR discloses an offence, there is no scope of investigation by a Writ Court before the actual trial for ascertaining whether such allegation is trained with malice. Merely because a civil dispute is already pending over the self-same matter, Mr. Kapoor contends, that cannot be a ground for quashing of the criminal proceeding at investigation stage. Quashing of the criminal proceeding at investigation stage, according to Mr. Kapoor, should be made in rarest of the rare cases where the allegation either does not disclose any offence or is so improbable that no reasonable person would consider the allegations contained in the FIR to be true. Mr. Kapoor, thus, prays for dismissal of the writ application with costs.
15. After the conclusion of the submissions of the learned Counsel for the respondents, Mr. Mukherjee, before giving reply, prayed before the Court for a direction upon the CBI to produce the complaint register maintained at the relevant office for the period between 22nd October, 1998 and 31st March, 1999 and also the letter dated March 23, 1999 written by the CBI which is referred to in the complaint dated May 24, 1999.
16. Mr. Mukherjee asseverated that if the said register is produced it would appear that the previous two complaints were entertained and that the CBI found no merit in those complaints as would appear from the remarks noted in the said register. Mr. Mukherjee further submitted that the letter dated March 23, 1999 would conclusively prove connivance between Railway Authority and CBI for initiation of fresh investigation on the basis of procured materials.
17. In view of such submission, this Court directed the learned Advocate for the CBI to produce those documents in Court. Pursuant to such direction, Mr. Roy the learned Counsel for the CBI produced those documents in original as also the xerox copies thereof with a prayer for return of originals after comparing those with the xerox copies. Mr. Roy, however, submitted that those documents were produced for inspection of the Court only but the petitioner should not be permitted to inspect those documents. Mr. Roy contended that in the register the relevant entries from October, 1998 till June 14, 1999 and the notes of progress of investigation of the cases including the present prosecution having been recorded, the petitioner at this stage is not entitled to inspect those reports. Similarly, Mr. Roy continued, the letter dated March 23, 1999 having been seized from the complainant pursuant to the complaint dated May 24, 1999, his client is entitled to the benefit of Section 172 of the Code of Criminal Procedure. Mr. Roy, thus, objects to the demand of inspection of those documents by the petitioner.
18. Mr. Mukherjee, for the petitioner, has, however, opposed the aforesaid contention of Mr. Roy. According to Mr. Mukherjee, once a Writ Court passes a direction for production of a document, unless the party upon whom such direction has been given, by affidavit claims privilege in terms of the provisions contained in the Indian Evidence Act and convinces the Court that he is entitled to such protection, the other party is entitled to inspect those documents; otherwise, Mr. Mukherjee proceeds, the Court should not look into those documents even if produced for inspection of the Court and it should be presumed that the party has not complied with the direction of the Court for production of records. Mr. Mukherjee submits that the documents called for by Court in this case are neither unpublished official record relating to affairs of the State nor will the interest of the public suffer if those documents are inspected by his client so as to justify refusal of inspection. Mr. Mukherjee in this connection placed strong reliance upon the decision of the Supreme Court in the case of Ghaio Mal & Sons v. State of Delhi and Ors.,
and that of a Division Bench of this Court in the case of Mrinal Kanti Das Burman v. State of West Bengal, reported in 1976(1) CLJ 571.
19. Mr. Mukherjee further contends that the letter dated March 23, 1999 having been written by the CBI prior to lodging of the FIR cannot form part of "police diaries" within the meaning of Section 172 of the Code of Criminal Procedure and thus, the CBI cannot get the benefit of the said provision of the Code. At the conclusion of hearing, the petitioner also filed a formal application praying for inspection of those documents.
20. Before I proceed to enter into the merit of this writ application, I propose to deal with the question whether the petitioner is entitled to have inspection of the documents produced by the CBI.
21. After hearing the learned Counsel for the parties, I am of the opinion that generally parties to the proceedings are entitled to get inspection of the documents produced before Court by any of the parties as per direction of the Court. But to this general rule there are exceptions. If the nature of the documents is such that law gives privileges to the party producing those documents to claim that those should not be made known to the public or the other party, in such a case, the Writ Court can refuse inspection to the other party. Sections 124 and 123 of the Evidence Act point out the circumstances where the direction of production of documents can be resisted by a party asked to produce documents. Similarly Section 172 of the Code of Criminal Procedure enumerates the materials which the prosecution can refuse to disclose to the accused. A Court cannot make use of the police diaries in its judgment or in seeking confirmation of its opinion on question of appreciation of evidence from, the statements contained in those diaries. The only proper use a Court can make of those materials is that during the trial it can get assistance from those by suggesting means of further elucidating points which need clearing up and which may be material for doing justice between the State and the accused. (See Habeeb v. State of Hyderabad, reported in)
22. In the present case, the letter dated March 23, 1999 although written by the CBI to the Railways prior to lodging FIR having been again seized from the complaint by the Investigating Officer pursuant to filing of FIR, clearly comes within the purview of Section 172 of the Code. The said letter definitely forms part of the expression "a statement of circumstances ascertained through his investigation" appearing in Section 172 of the Code. At this stage, this Court will accept the contention of the CBI that the said letter was seized from the complainant pursuant to the FIR to be true. Such contention is however, subject to proof in the criminal trial.
23. As regards the register maintained by the CBI from October, 1998 till March 1999, the CBI can legitimately contend that they have right to maintain secrecy of other complaints lodged before them and also the progress of investigation noted therein although the petitioner is not party to those investigations.
24. I, therefore, hold that the petitioner is not entitled to get inspection of the documents produced by the CBI at this stage [See in this connection the observations of Apex Court in Director, CBI and Ors. v. Niyamavedi, reported in 1995 SCC (Cri.) 558]. CAN No. 712 of 2004 is, thus, disposed of accordingly.
25. I now propose to enter into the merit of this writ application.
26. The petitioner has prayed for quashing of the FIR and the consequent investigation at the preliminary stage on twofold grounds.
27. First, the initiation of the proceedings was actuated with a mala fide intention and secondly, the investigation started on the basis of third complaint was void when no action had been taken on the basis of the first two complaints.
28. As regards the first ground, we must bear in mind that the question whether a prosecution has been started with mala fide intention can only be answered after investigation of facts. In a given case, such intention may be conspicuous on the face of record but in some other cases it may not be apparent but can be detected on scrutiny of evidence; similarly, in some cases although mala fide intention may be ostensible at the first sight but on appreciation of evidence it may be found in the long run that what was apparent was not the reality but was merely an apprehension or a false plea taken with a motive to prejudice the Court.
29. This Court at the same time cannot lose sight of the fact that an investigation and the consequent trial, if any, of an alleged crime must be conducted in accordance with the provisions contained in the Code of Criminal Procedure. According to the Code, if the Court takes cognizance of the offence, it is for the prosecution to prove beyond reasonable doubt that the accused has committed the alleged offences. The accused at the trial is free to lead evidence in support of his plea of innocence and even may decide not to lead any evidence and can only cross-examine the prosecution witnesses for the purpose of pointing out the mendacity of the evidence offered on behalf of the prosecution. The plea that the initiation of prosecution is the outcome of "malice" against the accused is also available to him at that stage. But the law does not permit the petitioner to approach a Writ Court claiming separate adjudication on the question of "mala fide intention" at the stage of investigation.
30. It is now settled position of law that a person can move a High Court under Article 226 of the Constitution complaining violation of his fundamental right or other statutory rights. If in course of investigation, there is violation of the provisions of the Code of Criminal Procedure, he can approach a Writ Court and in appropriate cases, the Writ Court can give him relief. But a person against whom an investigation has commenced cannot claim deviation from the provisions of the Code of Criminal Procedure on the plea of mala fide intention of the complainant or the prosecutor. A petitioner can definitely come up before a Writ Court alleging that the FIR does not disclose any offence at all and that the investigation on the basis of such an FIR should be quashed. He may also be successful in quashing an FIR if the allegations contained therein although constitute an offence, are so improbable that no reasonable individual will believe such statement. But if the FIR, taken to be true, constitutes an offence, he cannot ask a Writ Court for an adjudication beforehand on the question whether such FIR was lodged with evil intention.
31. I, thus, find no merit on the first ground and do not propose to investigate the ground of "sinister motive" alleged in this writ application.
32. The next question is whether an investigation started on the basis of third complaint can be quashed merely because in the past two similar complaints were lodged but the police did not register those complaints as FIR nor did it send those to the Court as required under Section 155 of the Code of Criminal Procedure.
33. As pointed out by the Supreme Court in the case of Kari Choudhary v. Sita Devi, 2002(2) SCC (Cri.) 269, the ultimate object of every investigation is to find out whether the offences alleged have been committed and if so, who have committed those. Even otherwise, the Supreme Court proceeded, the investigation agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under Section 173(2) on a previous occasion. In the present case, if no action was taken on the basis of earlier complaints, it is for the prosecution to explain the reason for such inaction at the time of trial, if such point is raised. But at this stage, there is no scope of calling for explanation for such alleged inaction in this, writ jurisdiction. Thus, even if it appears that prior to formal lodging of FIR on June 14, 1999 there were two earlier complaints making similar allegations, such fact alone cannot justify quashing of the FIR at this stage.
34. In a given case, whether investigation commenced on the basis of a particular complaint, is always a question of fact. In this case whether the CBI started investigation on the basis of complaint filed in October, 1998 is a question of fact, to be adjudicated at the trial. If it is established that investigation really started on the basis of the complaint filed in October, 1998, then the 2nd and 3rd complaints will fall within the compass of Section 161 of the Code and the rigour of Section 162 will come into play. All these points will be available to the petitioner at the time of trial conducted in accordance with the provisions of the Code. But at this stage, there is no scope of scrutiny of those disputed questions of fact beforehand in this writ application in departure from the procedure provided in the Code.
35. The other submission of Mr. Mukherjee that the question of fraud being the subject-matter of the pending appeals under the Arbitration and Conciliation Act, 1996, the criminal investigation on the self-same issue should not continue, is equally devoid of any substance. Even if it is ultimately held in those proceedings that there was no fraud in obtaining the impugned awards, such fact cannot stand in the way of criminal investigation at the instance of the CBI who is not party to the arbitration proceedings. The Apex Court has already settled the aforesaid position of law in various judgments referred to by Mr. Roy and Mr. Kapoor [See Lalmuni Devi v. State of Bihar and M. Krishnan v. Vijay Singh and Ors. (supra)].
36. I will now proceed to consider the decisions relied upon by Mr. Mukherjee.
37. In the case T.T. Antony v. State of Kerala and Ors. the Supreme Court was considering cases where in spite of the fact that investigations pursuant to registration of an FIR lodged in 1994 was pending, fresh FIR was lodged in 1997 over the self-same incident indicting additional persons with graver charges after the change of Government on the basis of report of commission under Commissions of Inquiry Act, 1952. Under such circumstances, the Supreme Court was of the view that on the date of filing of the 2nd FIR, the investigations in the earlier proceedings being pending, the correct course of action should have been to take note of the findings and contents of the report of commission, streamline the investigation to ascertain the true facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 of Cr.P.C., as the case may be, and forward the report or reports under Section 173(2) or Section 173(8) of the Cr.P.C. to the Magistrate concerned instead of registration of second FIR with regard to the same incident and making fresh investigation. Thus, the 2nd FIR and fresh investigation were quashed leaving it open to the investigating agency to seek permission of the Magistrate concerned in the earlier case to make further investigation and forward further report or reports.
38. In my view, the principles laid down in the case of T. T. Antony (supra) cannot have any application to the case before us where even according to the petitioner the earlier complaints were not at all registered as FIR and the investigations in this case are proceeding on the basis of the 3rd complaint which is "first registered FIR". Thus, there is no scope of quashing such FIR and the consequent investigations at this stage, simply because the two earlier complaints were not registered as FIR by relying upon the decision in the case of T. T. Antony (supra).
39. In the case of State of Haryana v. Ch. Bhajan Lal and Ors., , the Supreme Court was considering an appeal by
special leave against the judgment of a Division Bench of the High Court of Punjab and Haryana quashing the entire criminal proceedings inclusive of registration of information report against Ch. Bhajan Lal in a writ application under Article 226 of the Constitution of India. The Supreme Court set aside the judgment of the High Court quashing the First Information Report; however, the Supreme Court also quashed the commencement as well as entire investigation on the ground that the third appellant therein was not clothed with legal authority to take up investigation with the meaning of Section 5A(1) of the Prevention of Corruption Act after giving liberty to State Government to direct investigation afresh, if it so desired, through a competent police officer empowered under Section 5A(1) of the Act. In paragraph 108 of the judgment, the Apex Court enumerated seven different circumstances when a Writ Court can quash the criminal proceedings to prevent abuse of process of law or to otherwise secure the ends of justice. The Court, however, hastened to add that it was not possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
40. Mr. Mukherjee asserted with vigour that this case comes within the seventh clause mentioned in paragraph 108. The said clause is quoted below :
"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 or personal grudge."
41. At this stage, it will be pertinent to mention that in the said case although allegations of the nature mentioned in the seventh clause quoted above were made, the Supreme Court refused to quash the proceedings on that ground and in paragraph 109 made the following observations :
"We also give 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 FIR 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 and caprice."
42. Further, in paragraph 114, the Supreme Court quoted with approval the following observations of Bhagawati C.J, in Sheonandan Paswan v. State of Bihar, :
"It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence, does not become vitiated on account of mala fide or political vendetta of the first information or the complainant."
43. In my view, the principles laid down in case of State of Haryana (supra), if are applied to the facts of the present case, this writ application should be dismissed, because at this stage of investigation, I should not be justified in embarking upon an enquiry as to reliability or genuineness or otherwise of the allegations made in the FIR that the petitioner used forged signatures of the railway officials or fake seal or stamp or that it was not possible to undertake delivery of such huge materials within a short period of 3/4 months.
44. Those allegations should be decided on the evidence of the parties and that of handwriting experts. This Court, at the stage of investigation, cannot probe into those disputed questions of fact. This is not a case that the allegations are so absurd that no reasonable or prudent man will believe those imputations. I, thus, find that the case of State of Haryana (supra) rather goes against the petitioner.
45. In the case of S. N. Sharma v. Bipin Kumar Tewari and Ors., , an FIR was lodged implicating Sri S. N. Sharma, an Additional District Magistrate (Judicial). Sri Sharma, filed application before the Judicial Magistrate having jurisdiction to take cognizance of the offence alleging that a false report had been lodged against him at the connivance of the local police thereby praying for conducting a preliminary enquiry by the Court itself by invoking Section 159 of the Cr.P.C. (1898). The learned Magistrate allowed such prayer directing the police to stop investigation. Against such order, High Court was moved under Section 561A of the then Code on the ground that the learned Magistrate acted without jurisdiction. The High Court allowed the application, quashed the order of the learned Judicial Magistrate and directed the police to conclude investigation and submit report to the learned Judicial Magistrate in accordance with law. The Supreme Court upheld the order of the High Court. At the time of hearing before Supreme Court, it was contended that the interpretation of Section 159 by High Court would prejudice the judicial officers who had to deal with cases brought up by the police and to give decisions unfavourable to the police. It was submitted that the police might engineer false report of cognizable offence against judicial officers and then harass them by carrying on a prolonged investigation of the offence made out by the report. In answer to such contention, the Supreme Court pointed out 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 remedy by invoking 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 had 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 power. In that case, the Supreme Court however did not interfere.
46. The position of law that if the High Court is convinced that the power of investigation has been improperly exercised by the police officer, it can always issue appropriate order preventing misuse of such power, is well settled. But the law is equally established that merely because such allegation has been made, the Court should not enter into those questions if those are of a disputed nature requiring detailed investigation of facts. Improper investigation based on malice should be so much manifested that there should be no doubt that the proceedings should not be allowed to continue any further; otherwise, it would be an abuse of process of law. In the present case, the petitioner has not been able to make out such a case at this stage so as to nip the proceedings in bud. I make no further comment, lest, the case of the petitioner is prejudiced at the trial.
47. In the case of State of Bihar and Anr. v. J.A.C. Shaldhana and Ors. (supra) the Supreme Court in clear terms indicated that the High Court in that case committed a grave error by making observations on seriously disputed question of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material and investigation into mala fides at that stage was not called for.
48. I fail to understand how that decision can be of any help to Mr. Mukherjee's client.
49. In the case of K.M. Nanavati v. State of Maharashtra (supra) the Supreme Court while dealing with an appeal against an order of conviction pointed out in paragraph 26 that the question whether the investigation commenced or not is a question of fact and the same does not depend upon the, irregularity committed in the matter of recording FIR by the concerned police officer. I have already held that the question whether the registered FIR in this case will be hit by Section 162 of the Code being a disputed question of fact should not be adjudicated in this writ application and that such point will be open to the petitioner at the time of trial.
50. Ajay Mitra v. State of M.P. (supra) is a case where the High Court did not quash an FIR relating to an offence under Section 420 of the Indian Penal Code in exercise of power under Section 482 of the Cr.P.C. notwithstanding the fact that the allegations made in the complaint, even if those are taken on the face value and accepted in its entirety did not constitute offence and as such the Supreme Court reversed the decision and quashed the FIR. In the case before us, it is not the case of the petitioner that the FIR, even if believed, did not constitute any offence. Thus, the principles laid down in the case of Ajay Mitra (supra) cannot have any application to the facts of the present case.
51. In the case of Chandra Pal Singh and Ors. v. Maharaj Singh and Ors., (supra) a frustrated landlord lodged complaint before the Magistrate for taking action under Sections 193, 199 and 201 of the Indian Penal Code on the allegation that the tenant affirmed false affidavit before the Rent Controller. The tenant filed application under Section 482 of the Cr.P.C. for quashing the complaint. The High Court having refused the prayer, the tenant went before Supreme Court. While dealing with such a case, the Supreme Court held that the averments in the complaint did not constitute any offence under Sections 199 and 201 of the Indian Penal Code and as such, was liable to be quashed. So far the offence under Section 193 is concerned, the complaint not having been referred to by the Rent Controller before whom the alleged false affidavit was filed, such complaint was not entertainable by the learned Judicial Magistrate. Thus, the entire complaint was quashed. In the present case, it is not the allegation of the petitioner that the averments in the complaint did not constitute the offence nor is it the case that the complaint has not otherwise complied with any other mandatory requirements of law. Thus, the said decision is of no avail to the petitioner.
52. Ishwar Singh v. State of U.P., , is a case where while hearing an appeal against conviction on the charge of murder, the Supreme Court reiterated the well settled principle that extraordinary delay in sending the FIR is a circumstance which provides legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishment and set up a distorted version of the occurrence when no explanation is offered for this extraordinary delay in sending the report to the Magistrate. In my opinion, the said principle can be applied after evidence is laid by prosecution, but for mere delay in sending the report to the Magistrate the FIR cannot be quashed at the stage of investigation. [See State of Punjab v. Dharam Vir Singh Jethi, 1994 SCC (Cri.) 500].
53. In the case of State of A.P. v. Punati Ramulu and Ors., 1994 Supp(1) SCC 590, the Supreme Court while hearing an appeal against acquittal in a murder case observed that in a case where the police officer deliberately did not record FIR on receipt of information about cognizable offence and subsequently FIR was prepared after reaching the spot, and after due deliberations, consultation and discussions, such a complaint cannot be treated as FIR and that it would be considered as statement made during investigation of a ease and would be hit by Section 162 of Cr.P.C. and consequently it would be unsafe to rely on such tainted investigation. In my view, the said principle can be applied only in a case where those facts are established on conclusion of trial; but taking aid of such principle, an accused person at the stage of investigation by filing a writ application cannot demand scrutiny of those disputed facts for the purpose of establishing that such investigation has been vitiated by the presence of those vicious elements.
54. The decisions cited by Mr. Mukherjee are, thus, of no assistance to his client.
55. I, thus, find that the petitioner has failed to make out a case of quashing of the FIR and the consequent investigation in this application under Article 226 of the Constitution of India.
56. The writ application is, thus, dismissed. Interim order granted earlier stands vacated. The respondents are directed to proceed further in accordance with law.
57. The xerox copies of the documents produced by the CBJ be kept with the safe custody in sealed cover till the expiry of the period of limitation for preferring an appeal against this order. If no appeal is preferred, those should be returned to the CBI. If appeal is preferred, those will kept in such custody subject to the direction of the Appeal Court.
58. In the facts and circumstances, there will be, however, no order as to costs.