Oral Judgment: (Dharmadhikari, J)
1] Rule. Respondents waive service. By consent, Rule made returnable forthwith.
2] The prayer in the first petition under Article 226 of the Constitution of India is to call for the records and proceedings pertaining to an order dated 9th October 2012 passed in C.C.No.410/SW/2012 filed by the respondent No.2 and the subsequent F.I.R. No.311 of 2012 registered by the respondent No.1 and thereafter quash and set aside the order and F.I.R. No.311 of 2012.
3] The three petitioners before us are the original accused Nos. 1 to 3. The first respondent is Inspector of Police, Juhu Police Station. The second respondent is original informer/ complainant. A complaint was lodged by the second respondent in the Court of Metropolitan Magistrate, 10th Court, Andheri, Mumbai alleging that the petitioner No.1 is married to the son of respondent No.2 on 2nd October 2006. The petitioner Nos. 2 and 3 are the brothers of petitioner No.1. All of them reside in Ludhiana in the State of Punjab.
4] The allegations in the F.I.R. which is sought to be quashed is that the petitioners before us conspired with the Samrala Police Station, District Khanna, Punjab and filed a false complaint against respondent No.2 original complainant. The entire complaint was a result of the forgery and other serious acts on the part of not only the present petitioners but also the police officials in the State of Punjab. These police officials and the present petitioners connived and colluded in filing and registering a false complaint and proceedings in accordance therewith. They proceeded in such a manner as to apprehend the second respondent in Mumbai. The entire false case resulted in the Punjab police visiting second respondent's house and trying to arrest her. The complainant's case is that her son Gautam Kumar got married to petitioner No.1 in Mumbai on 2nd October 2006 as per Hindu rites and customs. From the wedlock a son by name Arnav was born. It is further submitted by original complainant that after the marriage of Gautam Kumar and petitioner No.1, the petitioner No.1 started residing in the joint family consisting complainant's father in law, husband, complainant herself and her daughter. Soon after the marriage, the petitioner No.1 started quarreling, arguing and cursing the complainant and her family members over any minor issues which ultimately resulted in to a separation of the family. The respondent No.2 states that Gautam Kumar is her only son who has been blessed by her grandson Arnav and, therefore, it was difficult for her and her husband to ask their son to stay separately. However, in the interest of petitioner No.1, grandson Arnav and respondent No.2's son Gautam Kumar and in order to save the married life of Gautam Kumar, respondent No.2's family allowed Gautam Kumar, petitioner No.1 and their son Arnav to stay separately and accordingly for about two years, Gautam Kumar along with petitioner No.1 and their son Arnav stayed in a separate residence. The respondent No.2 states that however, even after residing separately, the petitioner No.1 was not satisfied and she did not spare a single moment to harass complainant's son Gautam Kumar.
5] It is further stated by the respondent No.2 that in this back ground of the matter in the year 2009 marriage of her daughter Ms. Aditi Kumar was scheduled which was to be solemnised in May 2010. For the same, respondent No.2 and her family was busy in the preparations and therefore, family of respondent No.2 requested the petitioner No.1 to also involve herself in the preparations being the daughter in law of the family. However, in the month of April 2010, petitioner No.1 along with grandson Arnav left for Ludhiana for the reason best known to her. Respondent No.2 states that she and her family were under the impression that the petitioner No.1 will attend the marriage of her daughter Ms. Aditi.
6] It is further stated that in the first week of May 2010 when the petitioner No.1 stopped answering phone calls of respondent No.2's family members under apprehension that she may play foul to implicate respondent No.2 and her husband and daughter, all three of them approached Sessions Court, Greater Mumbai and were released on anticipatory bail from sessions court. Respondent No.2 further states that when herself and her family was busy in the preparation of the marriage of daughter Aditi at Mumbai, her daughter in law did not come to attend the marriage inspite of invitation from the family of respondent No.2. It is alleged that therefore family of respondent No.2 presumed that she may turn up in the first week of June 2010 when the school of grandson was to open. It is further stated by respondent No.2 that she and her family came to know about ill- motive of the petitioners when Punjab police came with petitioner No.3 at her residence at Mumbai at night about 10.30 p.m. to arrest respondent No.2 and her family members. Respondent No.2 states that in collusion with the police officers and medical officers of state of Punjab, the petitioners hatched a criminal conspiracy in order to book respondent No.2 and her family in a false criminal case on the verge of the marriage of daughter Aditi in order to lower their image in the eyes of the society. It is alleged by the Respondent No.2 that the petitioner Nos. 2 and 3 are industrialists of Ludhiana having muscle and money power and in fact the petitioner Nos. 2 and 3 have very good contacts with police officials and political persons of State of Punjab and thus they are influential and can book any person in any false criminal case.
7] It is stated further by respondent No.2 that on 30th May 2010 at 10.30 p.m. the petitioner No.2 in order to give effect to the criminal conspiracy hatched, reached the residence of respondent No.2 along with one A.S.I. Gurmail Singh of Samrala Police Station, District Khanna, Punjab along with local police from Juhu Police Station and arrested respondent No.2 and her son Gautam Kumar. It is further stated by respondent No.2 that when she and her son Gautam Kumar showed a copy of the anticipatorry bail order, the petitioner No.2 and the said A.S.I. Gurmail Singh tore the said order and took them to Juhu Police Station. All through the said episode, the above-said police officer was constantly in touch with his superior officer (SHO) and taking instructions on his cell phone. Even the petitioner No.2 was present all the time with the above-said police officer and actively instigated him to go ahead with the arrest and other formalities.
8] Thereafter, it is stated by respondent No.2 that on 31st May 2010 she and her son Gautam Kumar were produced before the Additional Chief Metropolitan Magistrate, Borivali for remand. At that time for the first time the respondent No.2 and her family members came to know that the petitioner No.1 in active connivance with the petitioner No.2 and 3 and other accused persons lodged F.I.R. being C.R.No.133 of 2010 against respondent No.2 and her family members with Samrala Police Station, Dist. Khanna, Punjab for the offences punishable under section 307, 498A, 406, 120-B of Indian Penal Code. The Metropolitan Magistrate on 31st May 2010 granted interim bail to respondent No.2 and granted transit remand to her son Gautam Kumar.
9] It is further stated by respondent No.2 that her son Gautam Kumar was thereafter produced before the Magistrate at Punjab and after necessary police remand, he was sent to judicial custody and after 36 days in custody, her son was released on regular bail on 5th July 2010. The respondent No.2 further states that since the Metropolitan Magistrate, Borivali granted her interim bail, she approached the Sessions Court, Ludhiana for anticipatory bail and she was released on anticipatory bail.
10] It is further stated that from the record and the documents produced by the petitioners and subsequently made available to respondent No.2 and her family members, they were greatly shocked and surprised to know that the petitioner No.1 entered into criminal conspiracy with her brothers and other police officers and medical officers and cooked up a blatantly false, concocted and fabricated story against Respondent No.2 and the family members and in pursuance of the said criminal conspiracy, the petitioner No.1 on 12th May 2010 at about 8.30 p.m. lodged F.I.R. No.133 of 2010 with Samrala Police Station for offences punishable under section 307, 498, 120-B of Indian Penal Code. It is also alleged in the said F.I.R. that on 8th May 2010, husband of respondent No.2, her son, respondent No.2 herself and daughter Aditi had been to the maternal house of Petitioner No.1 and asked for money whereupon, the petitioner Nos. 2 and 3 tried to give Rs.10 lakhs but however, respondent No.2 and her family members demanded Rs.25 lakhs. It is further alleged in the said F.I.R. that brothers of petitioner No.1 requested respondent No.2 and her family members to accept Rs.10 lakhs and assured that the remaining amount will be given before the marriage of daughter Aditi and accordingly the respondent No.2 and her family members accepted Rs.10 lakhs and took the petitioner No.1 and grandson Arnav from Ludhiana in a car. It is further alleged that on the way, respondent No.2 and her family members started abusing petitioner No.1 and in front of ITI, some distance from Samrala, the son of respondent No.2 Gautam Kumar put a rope around the neck of Petitioner No.1 and Aditi caught hold of her from her arms and the respondent No.2 and her husband encouraged them by saying that petitioner No.1 should be eliminated and the said Gautam Kumar tried to strangulate the petitioner No.1. It is further alleged that however, the petitioner No.1 opened the door of the car and jumped out of the car along with child Arnav. It is alleged that the said incident took place at 10.45 p.m. and on seeing some passersby, the respondent No.2 and her family members ran away towards Chandigarh and in the meantime some passersby stopped near petitioner No.1, enquired with her and got her admitted in Civil Hospital, Samrala where the Doctors referred her for higher management, but the brothers of petitioner No.1 took her to private nursing home, namely, Medicity, in Ludhiana. According to respondent No.2 with all these allegations, the said F.I.R. came to be lodged.
11] The investigations in the said crime (F.I.R.No.133 of 2010) were conducted by A.S.I. Gurmail Singh. It is further alleged by respondent No.2 that since the F.I.R. was part and parcel of criminal conspiracy hatched by the petitioners with A.S.I. Gurmail Singh, the investigations were naturally conducted by him, and to give effect to their criminal conspiracy the petitioner No.2 along with the aforesaid police officer and other police of Punjab came to residence of respondent No.2 in order to arrest respondent No.2 and her family members. It is further alleged by respondent No.2 that the petitioners and other accused in the complaint forged and fabricated several documents including public records of police station and even the medical records of civil hospital Samrala and prepared false statements and false entries were made.
12] It is further stated by respondent No.2 that admittedly herself and her family members were not at all present in Punjab on 8th May 2010 when the alleged incident took place and they were busy in preparations of the marriage of daughter Aditi. It is further stated that when the respondent No.2 and her family members learnt the story cooked up by the petitioners, they were under great shock and being aggrieved by the registration of the F.I.R. by the petitioner No.1, husband and daughter of respondent No.2 approached the sessions court at Ludhiana for ancitipatory bail and they were released so. Since according to respondent No.2, a blatantly false and fabricated case was filed against respondent No.2 and her family members, husband of respondent No.2 filed a Criminal Misc. Application No.21215 of 2011 (Exh. G to the petition) in the High Court of Punjab and Haryana for quashing of F.I.R. No.133 of 2010 with further prayer to transfer the investigation to an independent agency. However the learned Single Judge of Punjab and Haryana High Court vide order dated 7th September 2012 dismissed the said petition on the ground that same had become infructuous, a copy of which order is annexed at page 128 of this petition. The daughter of respondent No.2 also filed a petition bearing Criminal Misc.No.M-39361 of 2011 for quashing of F.I.R. No.133 of 2010 in the High Court of Punjab and Haryana at Chandigarh and by the order dated 7th September 2012, the learned Single Judge of the Punjab and Haryana High Court dismissed the petition of the daughter of respondent No.2. Thereafter, the daughter of respondent No.2 being aggrieved by the said order dated 7th September 2012 preferred Special Leave Petition No.9400 of 2012 in the Supreme Court. However, the Supreme Court vide order dated 2nd January 2013 dismissed the said Special Leave Petition.
13] It is further stated in the complaint by respondent No.2 that except the application made by her for anticipatory bail in the sessions court, Ludhiana, she has not filed any proceedings in any court for any relief in respect of F.I.R. No.133 of 2010. However, she had filed an application before the A.D.G.P. (Crime), Punjab State for transfer of investigation and further investigation of F.I.R. No.133 of 2010. Pursuant to this application, the A.D.G.P. (Crime) referred the said application and directed S.P. State Crime Office, Punjab SAS Nagar for inquiry vide application No.331/Reader/DIG dated 29th November 2011.
14] It is further stated by respondent No.2 that her husband had also filed an application with all supporting documents for inquiry into the case before the Human Rights Cell, Punjab, Chandigarh vide complaint No.773 of 2010 and prayed for thorough enquiry in respect of F.I.R.No.133 of 2010. Pursuant thereto the A.D.G.P. (Crime), Punjab Police appointed Special Investigation Team headed by I.G.P. Shri R.L. Bhagat, IPS and the Special Investigation Team (for short SIT) conducted the investigations declaring the respondent No.2 and her family members as innocent.
15] It is thereafter stated by respondent No.2 that her husband had further filed application to National Human Rights Commission, New Delhi. The Director General appointed a Special Investigation Team (SIT) for spot inquiry and the SIT concluded that the said F.I.R. 133 is not only fake but has been registered in connivance with the Punjab Police.
16] It is further stated by respondent No.2 that pursuant to her application as well as complaints by her husband, the independent investigating agencies conducted a detailed inquiry by recording statements of respondent No.2 and her family members and also taken on record the documentary evidence produced to show that on the day of alleged incident, respondent No.2 and her family members were not at all in Punjab but were present very much in Mumbai. The said independent investigating agencies during the course of their investigation recorded the statements of the doctor and independent witnesses and came to the conclusion as follows:-
(a) that the allegations made by the petitioner No.1 in her F.I.R. No.133 of 2010 at Samrala Police Station are false;
(b) that the alleged incident in the FIR did not at all occur;
(c) that the false case against the accused in F.I.R.No.133 of 2010 was preplanned;
(d) that the so called Rahgir (passerby Mr. J.D. Dawar) was not a Rahgir as projected in the F.I.R. but in fact a family friend and business associate of petitioner Nos.2 and 3. This fact was proved by call records which show this relation and also by an affidavit to that effect filed by Mrs. Priyanka Jindal wife of brother of petitioner No.1.
(e) That as projected and recorded in the said F.I.R., J.D. Dawar as a Rahgir had for the first time learned of Jogesh Aggarwal's cell number from the petitioner No.1 at the alleged site where she was found by him, was false, as he was very much known and in contact with Jogesh Aggarwal and others prior to that alleged incident.
(f) that all the four accused named in the F.I.R. namely the respondent No.2, her husband Suresh Kumar, son Gautam Kumar and daughter Aditi were not present at the alleged scene of crime but were in Mumbai which fact was established by the inquiry teams from the call records of those accused and statements of witnesses who vouched about their presence in Mumbai prior to and after the alleged occurrence in Samrala on 8th May 2010.
(g) In the said inquiry it was found that Dr. Sachdeva of Medicity Hospital, Ludhiana too was managed by brothers of the petitioner No.1. He issued a written endorsement to the police that the petitioner No.1 was not in a state to make a statement to police for next few days after she was admitted in his hospital on the night of 8th May 2010. Contrary to this endorsement, he had directed in the case records that the petitioner No.1 (Shallu) be given Parathan in her diet which she consumed and enjoyed till her stay in that hospital which fact again proves that she had not sustained any injury to her throat due to alleged attempt to kill her by strangulation by a rope. Furthermore, on the evening of 11th May 2010 she left that hospital with an excuse that she would go to her home but went to Civil Hospital, Samrala to get an added injury to her MLR which fact proves that it was too a part of the said conspiracy to plug the hole in the MLR in respect of injury enough to attract serious penal section of 307 of I.P.C.
(h) That Dr. Negi of Civil Hospital, Sarmala who is alleged to have treated the petitioner No.1 recorded injuries on her person in the MLR which did not correspond to the alleged history. The petitioner No.1 mysteriously appeared, though she was already an indoor patient in Medicity Hospital, Ludhiana. In that hospital again on the night of 11th May 2010 she got an additional injury added to her MLR as a dangerous injury on the basis of the statement of ENT Specialist Dr. Saroj Sethi. It was found by the inquiry teams that Dr. Saroj Sethi never endorsed any injury in the MLR as dangerous which fact she categorically stated in her statement to the inquiry teams as well before the magistrate Samrala. Dr. Gaurav Sachdeva's cell number call records too established that he was in contact with brothers of the petitioner No.1 prior to the alleged incident. This fact as emerged in the inquiry establishes that Dr. Negi too was a co-conspirator in the criminal conspiracy hatched as pointed out hereinabove.
(i) The Civil Surgeon of Civil Hospital Sarmala when sought by the Inquiry Team, opined that the alleged injury recorded in the MLR could be self-inflicted. This vital opinion clearly proves that the injuries that found place in petitioner No.1's MLR were not genuine but created ones.
(j) That all the call records show that brothers of the petitioner No.1, J.D Dawar, Dr. Negi, Arvind Puri, SHO Samrala, P.S. were all in contact with each other prior to, during and after the alleged crime. Not only this, the records further prove that Jogesh Jindal, Vinay Jindal (both brothers of the petitioner) were very much present in Samrala Police Station itself prior to the alleged occurrence. Shockingly, the call records also shows that wife of SHO Arvind Puri too was in contact with family members of the petitioner No.1. This irrefutable documentary evidence adds to the finding that all the said persons and police officials have hatched a criminal conspiracy for the said objective.
(k) The inquiry teams have in clear wording recommended that the F.I.R. No.133 of 2010 of Samrala Police Station registered against all the four accused viz., the complainant (respondent No.2), her husband Suresh Kumar, son Gautam and daughter Aditi be cancelled;
(l) the innocence report in respect of all the said four accused be filed in the court;
(m) action against the responsible police officers/ person for framing the false case be initiated.
17] In addition to the above noted findings of the Inquiry Teams, the inquiry records if examined further would reveal few more facts which fortify the findings of the Inquiry Teams that:-
(i) The I.O. of case ASI Gurmail Singh in the very first Jimny (case diary) noted down that the case appeared to be shukky (doubtful). SHO Arvind Puri too endorsed this. It becomes imperative in such case to verify the veracity of the complaint and related events and then if found to be true act further. Instead of first doing the verification of the complaint the local court was approached the very next day and arrest warrant was sought against all the four accused named in the F.I.R. This gives rise to the inference that they wanted to arrest the said four accused from the marriage ceremony of Aditi that was to take place on 16th May 2010. Unfortunately for them, they did not succeed in it on time and got the warrants extended on 25th May 2010.
(ii) Samrala Police Station is about 40 kms away from Ludhiana city. The proven facts that all the said conspirators were in communication with each other prior to, during and after the alleged crime, and also the fact that wife of SHO Arvind Puri was also in contact with family members of the petitioner No.1 given ample reasons to infer that SHO Arvind Puri and ASI Gurmail Singh were not party to the said conspiracy as a charity or favour but to abuse their position as public servants and thereby to gain pecuniary or other advantage to the petitioner No.1 and her brothers.
(iii) It would not be a disputed fact that Samrala Police Station is located along the National Highway from Chandigarh to Ludhiana between the alleged scene of crime and civil hospital, Samrala. It is stranger than fiction to mention that none of persons i.e. the so called Rahgir J.D. Dawar and Jogesh Aggarwal who passed that police station at least twice during the alleged episode did not inform the police about the alleged crime in order to put the police on alert and nab the accused in time before they get an opportunity to escape far away. This was obviously not done because they knew they had stage managed the crime and any such timely act would expose them.
(iv) It is also not disputed that the petitioner No.1 is well educated and her hands were not injured or disabled in the alleged incident. She was naturally expected, if she was unable to speak due to an injury to her throat, to write down her complaint on a piece of paper in the Civil Hospital itself. The alleged throat injury did not prevent her from eating Paranthe very same day at Mediciti Hospital, Ludhiana and she could not have done so had that injury actually existed. It is also pertinent to note that she jumped out of the running car along with a three year child, but there is no medical examination of the child. This lapse too was part of the conspiracy to create a situation so that by the time the F.I.R. was lodged and police were put in action, the accused persons had reached Mumbai so that they could all be arrested from the marriage ceremony of Aditi scheduled on 16th May 2010 i.e. two days after the alleged crime plot.
(v) No efforts were made to trace the car and its driver in which the alleged attempt on life of the petitioner No.1 was made nor the petitioner No.1 was questioned on this count while her F.I.R. was recorded. There is no mention of the make or registration number of the car in the said F.I.R. No.133. Even the Driver of the car was not made an accused. This vital piece of evidence as per the false F.I.R. was left untouched for obvious reasons.
(vi) Though section 406 of Indian Penal Code was added in the F.I.R. no efforts were made to recover the stridhan. As regards the alleged cash of Rs.10 lakhs given to Suresh Kumar on 8th May 2010 as alleged in the F.I.R. no attempt was made in Mumbai to recover or find the same at the time of or after the illegal arrest of the complainant and her son Gautam by a house search panchanama and/or interrogation of the arrested accused in Mumbai itself although Mumbai itself was the only place from where such recovery could have been possible. On the contrary, the arrested accused were taken to Punjab immediately after the remand on next day of arrest.
(vii) The F.I.R. was recorded on the night of 12th May 2010 after about 96 hours' delay after the alleged incident. This too was a deliberate and intentional act on the part of all the conspirators in order to avoid investigation measures to trace the car, its driver/ owner, the cash that was being carried in it, the weapon of crime i.e. the rope etc., all of which would have been done if the F.I.R. came to be recorded promptly.
(viii) The petitioner No.1 and her brothers did not cooperate with the Inquiry Team in placing their say on record. Instead they approached the High Court against the Inquiry Team for alleged harassment. If their case was true, they should have placed on record their statements/ documents in support of their claims or allegations. But they intentionally evaded this for obvious reasons to stall the inquiry team from finding out the truth. On the contrary, they managed to file a challan against three accused i.e. the husband of respondent No.2, her son and her daughter in hurried manner through the SHO and staff officer to DGP Punjab in August 2011, on the basis of biased documents before their transfer from Samrala. The same challan is still pending and no charges against three persons other than Respondent No.2 have been framed till date.
(ix) It is also not a disputed fact that the false F.I.R. No.133 of 2010 names the complainant (respondent No.2), her husband Suresh Kumar, their son Gautam and daughter Aditi as the accused who made an attempt on the life of petitioner No.1. The filing of an innocence report in the Sessions Court of Ludhiana by the I.O. based on the findings of the Inquiry Team appointed by the ADGP (Crime) Punjab Police also proves the innocence of remaining three accused viz., Suresh Kumar, Gautam and Aditi.
(x) The complainant (respondent No.2) and Gautam were arrested illegally though the complainant had valid anticipatory bail. S.H.O. Arvind Puri was in full control of the arresting situation and was informed of the anticipatory bail but he and Jogesh Jindal who was present with accused No.6 ASI Gurmail Singh had encouraged and instigated Gurmail Singh to defy the anticipatory bail order and effect the arrest. This fact shows that I.O. Gurmail Singh and SHO Arvind Puri in pursuance of the conspiracy decided to effect the arrest illegally and prepare related documents in incorrect way and take such incorrect record on their investigation papers and also to present such incorrect records before the court during the court proceedings during the remand stage as well as to courts in Punjab also.
(xi) The petitioner No.1 recorded her F.I.R. to accused Gurmail Singh on 12th May 2010. It is admitted position that she had been to Civil Hospital, Samrala on the night of 11th May 2010 to get her MLR recorded with an additional injury which could be serious enough to attract the provisions of Section 307 of Indian Penal Code. She intentionally suppressed this vital fact from the F.I.R. and/or did so at the instance of other conspirators to hide their attempt to get the MLR modified to include serious injury.
(xii) The call records received and produced before the Superior Police Officers and Inquiry Teams by the complainant's husband Suresh Kumar and also collected by the Inquiry Teams revealed that the conspirators were communicating with one another prior to, during and after the alleged crime on 8th May 2010 by several calls ranging from few seconds to as long as 600 seconds. The fact of these several calls mainly during the relevant period of actual execution of the objectives of the hatched criminal conspiracy undoubtedly point to the conspiracy and adds to the falsity of the case against the four accused named in the F.I.R.
18] The respondent No.2 further states that the said reports with findings and recommendations therein were placed before the higher authority of the Punjab Police who in turn examined the reports, findings and the recommendations and accepted the same in full. It is further stated that pursuant to this, the ADGP (Crime) Punjab Police Vide letter No.13374 dated 3rd July 2012 directed S.S.P. Khanna having jurisdiction over Samrala Police Station to comply with the said three recommendations of the inquiry agency and sought the report of compliance.
19] The respondent No.2 further states that S.S.P. Khanna had partially complied with the said three directions. From the aforesaid reports, it is abundantly clear that Respondent No.2 and her family were totally innocent and falsely implicated in a crime by the petitioners with the active connivance of the accused persons named in the complaint of respondent No.2. It is further alleged by the complainant / respondent No.2 that though the previous investigating officer filed a charge sheet against three persons viz., the husband of respondent No.2, her son and daughter no charge sheet was filed against the respondent No.2. In this background of the matter, the respondent No.2 filed a private complaint bearing C.C.No.410/SW/2012 in the court of Metropolitan Magistrate, 10th Court, Andheri, for offences punishable under section 120-B, 342, 465, 467, 468, 469, 471, 193, 211, 218, 220, 500 of Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioners and other accused persons named in the said complaint. The Metropolitan Magistrate vide order dated 9th October 2012 sent the complaint to the Juhu police station for investigation under section 156(3) of Cr. P.C. In pursuance thereof, the Juhu Police Station registered the crime vide M.E.C.R.No.11 of 2012 dated 3rd November 2012.
20] The respondent No.2, therefore, submits that it is clear that her complaint is not a counter blast to the F.I.R. lodged by the petitioner No.1 against her and her family members and all the ingredients of the offences are specifically made out against the accused persons, and taking into consideration the conduct of the petitioners, the complaint lodged by her cannot be quashed in any circumstances and, in fact, no ground is made out by the petitioners for quashing the same. There is no abuse of process of law and, on the contrary, the petitioners have filed a false and blatantly concocted F.I.R. against the respondent No.2 and her family members.
21] It is on this complaint that the petitioner alleges that the Metropolitan Magistrate passed an order, a copy of which is at pages 30/31 of the paper-book on 9th October 2012. That order under section 156(3) of the Code of Criminal Procedure, 1973 directs the Senior Inspector of Police, Juhu Police Station to register an F.I.R. and to inquire and investigate in the matter and to submit a report on or before 20th December 2012.
22] Before passing this order and direction, the learned Magistrate records that the complaint read as a whole, prima facie, discloses the commission of a cognizable offence. That is how the F.I.R. was registered and, when investigations have commenced, that this petition has been filed.
23] Mr. M.S. Mohite, learned Counsel appearing for petitioners in the first petition submitted that the petitioners therein do not wish to argue anything on the merits of the complaint. They are questioning the power of the concerned police station at Mumbai to register the F.I.R. and to commence investigation and the only issue canvassed by the Petitioners is one of territorial jurisdiction. In the submission of Mr. Mohite, the present petitioners are all residents of Ludhiana, State of Punjab. They had never resided nor are carrying on any business or any activity for gain within the State of Maharashtra or particularly at Mumbai. They could not have been proceeded against by the Mumbai police. The Mumbai police have no authority or jurisdiction to question these residents of Punjab State as the entire cause for the institution of the present private complaint by respondent No.2 has occurred in the State of Punjab. The competent police station within the State of Punjab had taken cognisance of a complaint or a criminal case instituted by the present petitioners wherein the respondent No.2 to this petition was named as one of the accused. That could not have given her any right to file a private complaint and arraign the present petitioners as accused in the State of Maharashtra and at Mumbai. By filing such a complaint, and when the cause of action has never occurred within the limits of the Police Station concerned, shows that the proceedings are not bonafide but criminal law is abused to harass the present petitioners and to somehow bring them to Mumbai and make them face criminal trial. Mr. Mohite's submission, therefore, is that the Inspector of Police attached to Juhu police station has no jurisdiction or power to investigate the crime and proceed against the present petitioners.
24] Mr. Mohite has then submitted that the present F.I.R. has been registered and the investigations have commenced therein even against those who are public servants within the meaning of the said term, in the Indian Penal Code and Prevention of Corruption Act, 1988. The complaint is filed not only against private persons but also these public servants. A private criminal complaint could not have been filed alleging offences punishable under Prevention of Corruption Act, 1988 as it is not maintainable. Mr. Mohite has invited our attention to the provisions contained in the IPC and the Prevention of Corruption Act, 1988 enabling initiation of prosecution against public servant and it is submitted that being police officials and part of Punjab Police Force, unless and until, the Punjab Police Force and superiors therein authorise and sanction the prosecution of these police officers for the offences alleged even under the aforementioned laws, the Mumbai Police could not interrogate and proceed against them, all the more on a private criminal complaint filed by respondent No.2. If the respondent No.2 could not have invoked the jurisdiction of the Magistrate to allege offences punishable under the Prevention of Corruption Act, 1988, then, the F.I.R. all the more deserves to be quashed. Mr. Mohite relies upon the following decisions in support of his submissions:-
(I) (2007) 7 S.C.C. 378 (Rejendra Singh Vs. State of U.P. and Anr.)
(II) (2005) 12 S.C.C. 709 (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and Anr)
(III) (2001) 7 S.C.C. 536 (Hemant Dhasmana Vs. Central Bureau of Investigation and Anr.)
(IV) (1984) 2 S.C.C. 500 (A.R. Antulay Vs. Ramdas Sriniwas Nayak and Anr.).
25] On the other hand, the second Respondent/ complainant's Advocate, Mr. S.G. Deshmukh, submitted that this petition is a abuse of the process of the Court. First of all, Mr. Deshmukh submits that the petition does not even annexe a copy of the F.I.R. Secondly, without referring to the allegations in the F.I.R., the argument of territorial jurisdiction based on the cause of action has been raised. Thirdly, all the ingredients essential for criminal prosecution to be maintained are prima facie disclosed as the complaint is not sought to be quashed on the ground that it does not disclose commission of any cognisable offence. Thus, the foundation for all the arguments in law is that the complaint does disclose the commission of cognisable offence. If that is the test, then, this petition deserves to be dismissed.
26] Mr. Pande learned Counsel appearing on behalf of the petitioners who are police Officers in other petitions viz., Writ Petition No.1495 of 2013 adopts the arguments of Mr. Mohite and additionally submits that the petitioners cannot be held guilty of any offences when in discharge of their official duties, they proceeded against the complainant and the other family members in this case.
27] Both Mr. Mohite and Mr. Pande have submitted that there was a serious complaint made by the complainant in the State of Punjab and on the footing that her husband had after strangulating her by a rope thrown her out of a running car and tried to kill her. There were other and specific allegations of harassment and ill treatment, so also cruelty meted out to her by her husband and her in laws who compelled her to return to the parental house in Punjab. When such was the nature of the allegations in the complaint against respondent No.2 and others in the present petition, then, the respondent No.2's complaint is nothing but an afterthought and a counter-blast to the criminal proceedings validly instituted and prosecuted in the State of Punjab. The persons arraigned as accused in criminal proceedings in the State of Punjab made all efforts to stall the criminal proceedings. They could not succeed and that is evident from the orders of the competent court in the State of Punjab.
28] Our attention has been invited to the statement of Mrs. Shalu Agarwal (Petitioner No.1), wife of Gautam Kumar and resident of House No.2881, Near LIC Office, Gurudev Nagar Police Station, Division 5, Ludhiana, in F.I.R. 133 of 2010 dated 12th May 2010 alleging offences punishable under sections 307, 498A, 406 and 120B of Indian Penal Code, registered at Samrala Police Station, District Khanna in the State of Punjab.
29] It was submitted by the learned Counsel that attempts were made to approach not only the Human Rights Commission but also Punjab and Haryana High Court and the Hon'ble Supreme Court. However, none could succeed and yet an attempt is now made to stall the criminal proceedings in the State of Punjab where the defence of the accused â respondent No.2 before this court, is that of alibi. In these circumstances, it is submitted that the petition be allowed.
30] On the other hand, Mr. Deshmukh has taken us through the records and submits that the arguments of Mr. Mohite and Mr. Pande are not tenable because after due scrutiny of all the allegations made, the competent authorities have discovered that the criminal proceedings in the State of Punjab were abuse of the process of the court. Mr. Deshmukh has taken us through the affidavit of the original complainant and submitted that the petitioner No.1 entered into criminal conspiracy with her brothers and other police and medical officers and cooked up a blatantly false and concocted, fabricated story against the respondent No.2 Sunita Suresh kumar and her husband, son and daughter Aditi. In fact the true factual position is that the marriage of daughter was to be solemnised in the month of May 2010. None of them were, therefore, in the State of Punjab and in Ludhiana in early May 2010. Mr. Deshmukh, therefore, submits that in the affidavit summary of the findings of the detailed investigations have been set out and one does not find any rejoinder thereto. In these circumstances, it is apparent that a false complaint was made to Punjab police and with the active assistance of the Punjab Police, the original complainant and her family members were framed. In such circumstances, the F.I.R. in the present case at Mumbai discloses commission of cognisable offence and all these allegations are made in the memo of C.C.No.410/SW/2012, being a criminal complaint filed in the Court of Metropolitan Magistrate, 10th Court, Mumbai. Mr. Deshmukh has taken us through para No.7 to 18 of this complaint and submitted that how the same discloses commission of cognisable offences is clear and, therefore, this is not a fit case for interference in this Court's inherent and writ jurisdiction.
31] With the assistance of learned Counsel appearing for the parties, we have perused the petitions and their annexures. As far as petitioners in the first petition (W.P.196-13) are concerned, they are the complainants in the F.I.R.No.133 of 2010 registered at Samrala Police Station. Since they are not raising a plea that the criminal complaint which is sought to be investigated does not disclose the commission of any cognisable offence, then we ought not to proceed on the footing that this complaint deserves to be quashed by us. Even otherwise, we have perused carefully a copy of the present criminal complaint, out of which the subject F.I.R. at Mumbai has been registered. Upon perusal of this complaint in its entirety and taking the allegations as they are and assuming them to be true and correct, we are of the opinion that the same discloses the commission of offences alleged by the complainant â respondent No.2. We do not think that a criminal complaint making such serious allegations not only against the private parties but public servants should be quashed. Whether the complainant will be able to prove her allegations or not is something which need not be gone into or considered by us at this stage. Prima facie, when the allegations in the complaint read as a whole make out the commission of cognisable offences against all the accused, then, we should not quash the criminal proceedings in our inherent and writ jurisdiction. Equally, our order passed in the present petition would not mean that we have arrived at a definite conclusion that the allegations in the F.I.R. filed in the State of Punjab are false and cooked up as alleged. However, merely because the present complainant Sunita Sureshkumar is an accused in a criminal case in State of Punjab does not make her present complaint not maintainable. Her complaint is based on the findings that are recorded in an Inquiry which was ordered by none other than the Additional Director General of Police (Crime). That was because of a complaint made by the husband of the complainant Sunita Suresh Kumar, Mr. Suresh Kumar to the Human Rights Cell, Punjab. In these circumstances, to brush aside these findings and at this stage would not be proper. Once this complaint filed by the complainant Sunita Suresh Kumar discloses prima facie as to how the complainant and her family were sought to be involved in a criminal case in Punjab, then it will not be proper for us to exercise our inherent and writ jurisdiction. We are not brushing aside any order of the High Court of Punjab and Haryana. All that we have observed is based on the allegations in the criminal complaint C.C.No.410/SW/2010 and which is sought to be quashed by the present petitioners.
32] To be fair, Mr. Mohite did not urge that this complaint should be quashed on merits. But his argument was that two legal questions arise for consideration and determination. He relied upon section 156 of Cr. P.C. That section reads thus:-
"156. Police officer's power to investigate cognizable cases.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned."
33] The argument of Mr. Mohite is that the learned Magistrate, 10th Court, Mumbai and equally the Juhu Police Station had no jurisdiction to take any note of the criminal complaint. The Magistrate passed an erroneous order completely ignoring sub-sections 1 and 3 of section 156 of the Cr. P.C. We are unable to accept this contention for more than one reason. The Hon'ble Supreme Court in the case of RasiklalDalpatram Thakkar Vs. State of Gujarat and Ors., reported in A.I.R. 2010 S.C. 715 held as under:-
â18. The principal question which emerges from the submissions made on behalf of the parties is whether in regard to an order passed under Section 156(3) Cr. P.C. the police authorities empowered under Sub- Section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so.â
20. From the aforesaid provisions it is quite clear that a police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code. Sub-section (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr. P.C. to order an investigation under Sub-section (1) of section 202 Cr. P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him.â
21. As far as the reference made to Sub-section (4) of Section 181 is concerned, the same appears to be misconceived having regard to the contents thereof which read as follows :-
"181. Place of trial in case of certain offences.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) Any offence of criminal misappropriation or of criminal breach of trust may he inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person."
Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr. P.C.â
â22. In the instant case, the stage contemplated under Section 181(4) Cr. P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the learned Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr. P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr. P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction.....â
23. Having regard to the law in existence today, we are unable to accept Mr. Syed's submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr. P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of actionâ¦..â
34] Pertinently, Mr. Mohite does not dispute that the power under section 156(3) has been exercised by the Magistrate in this case in issuing the order and direction dated 9th October 2012. Once that is the admitted position and this order is traceable to the said legal provision, then, it is apparent that the Magistrate is yet to take cognisance of the complaint. It is too well settled to require any reiteration that the power under section 156(3) Cr. P.C. can be exercised only before taking cognisance and within the meaning of sections 200 to 202 of Cr. P.C. However, Mr. Mohite would urge that before this exercise can be initiated by the learned Magistrate, he must satisfy himself that the offences alleged have been committed within the limits of the Juhu Police Station. According to Mr. Mohite this is not the position in the present case.
35] We are unable to agree because this is essentially a factual matter. The complainant alleges that in pursuance of some criminal proceedings lodged in the State of Punjab against the complainant and her family members, what the police party from Punjab and the accused in this case have done is to visit the residence of the complainant. The visit is clearly mentioned in para 11 of the complaint and, thereafter, the events set out in paras 12, 14 and 15 would go to show as to how, according to the complainant the cause of action has arisen at Mumbai. Merely because the criminal proceedings in the State of Punjab are referred to in the complaint does not mean that the complaint could not have been filed at Mumbai. We say nothing more than this because it would prejudice the case of either party at further stages of the criminal proceedings. Presently, from what has been averred and alleged in these paragraphs coupled with the written complaint dated 6th October 2012 made by the complainant to the Juhu Police Station, we are of the view that there is no force in the submissions of Mr. Mohite.
36] Apart there-from, sub-section 1 of section 156 would show that any officers in charge of the police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Therefore, in the matter of examining the issue of local limits of such police station and its power to inquire into a criminal complaint, the officer in charge of the police station cannot take upon himself the power to rule on the jurisdiction or competence of a criminal court. All that the Hon'ble Supreme Court holds in the case of Rasiklal Dalpatram Thakkar (supra) is that it is not for a police station or the station house officer to decide such intricate issues. Ultimately, Chapter XIII in the Cr. P.C. under which section 177 to 189 fall would show that the Legislature in more places than one has specified that an offence is triable where an act is done or where consequences of such act ensue. (See Section 179 of Cr. P.C.).
37] It is for this reason that the Supreme Court in the case of Rasiklal Dalpatram Thakkar (supra) holds that even if the Station House Officer is of the view that he did not have jurisdiction to investigate the matter, it is not within his province to refrain from holding a proper and complete investigation. The powers vested in the investigating authorities under section 156(1), Cr. P.C. do not restrict the jurisdiction of the investigating agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. To our mind, this judgment of the Hon'ble Supreme Court is a complete answer to the submissions of Mr. Mohite based on a reading of section 156 of Cr. P.C. Equally, his argument that the Magistrate empowered under section 190 may order an investigation but he will have to also abide by the mandate of sub-section 1 of section 156 Cr. P.C. cannot be accepted at this stage. The Hon'ble Supreme Court has clarified in all such matters that where an officer in charge of the police station has the requisite jurisdiction to make an investigation or not will depend upon a large number of factors including those contained in section 177, 178 and 181 of Cr. P.C. In the matter of NareshKavarchand Khatri Vs. State of Gujarat reported in (2008) 8 S.C.C. 300, this is what the Hon'ble Supreme Court has held:-
â8. Whether an officer in-charge of a police station has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the concerned officer in-charge of the police station which has jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure Code would also be relevant there-for. We need not dilate more on analysis of the aforementioned provisions as the said question has been gone into by this Court on more than one occasion.â
â9. In Satvinder Kaur vs. State (Govt. of NCT of Delhi) : 1999 (8) SCC 728 this Court noticing various provisions of the Code of Criminal-Procedure opined:
"12. A reading of the aforesaid sections would make it clear that Section 177 provides for "ordinary" place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime."
It was furthermore held :
"15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction."
10. Yet again in Asit Bhattacharjee vs. Hanuman Prasad Ojha : (2007) 5 SCC 786 this Court clearly held:-
"32. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of the State of West Bengal's having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter.â
33. Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever."
38] Once the matter is at initial stage and the learned Magistrate is yet to take cognisance, then, all the more we should refrain from saying anything further. For the reasons afore-noted, we do not find any merit in the first submission of Mr. Mohite.
39] Equally, Mr. Mohite's and Mr. Pande's second submission cannot be accepted. The argument is that section 211 of Indian Penal Code has been mentioned in the F.I.R. and it is alleged that the officers and public servants of Punjab State and Punjab Police are charged with an offences punishable under section 211 of IPC. It is submitted that whether the charge in the F.I.R.No.133 of 2010 registered in the State of Punjab is false or not cannot be decided in the present proceedings. The complainant in the present criminal complaint cannot seek an enquiry or probe into the allegations or findings in an enquiry against the police officers and the public servants working within the jurisdiction of the competent authority in the State of Punjab. It is submitted that precisely this is the attempt made in the present complaint. We are unable to agree with these submissions and particularly because section 211 may have been invoked or mentioned in the F.I.R. by the complainant â respondent No.2 Sunita Sureshkumar. However, whether there are materials produced to frame any charge or to proceed against the petitioners or other accused under this section is a matter which will be decided only after investigation. Today the matter is at the initial stage. Ordinarily Police Investigations should not be interdicted or interfered with by this Court. It is for the competent criminal Court to ultimately take cognisance of the complaint and which is yet not taken. In these circumstances, we are of the opinion that the petitioners are in no way prejudiced by mere reference to section 211 of the IPC in the F.I.R. The complainant may or may not be able to produce any material to support her allegations in relation to this offence. Equally, the investigating machinery which is duty bound to investigate the matter fairly and in accordance with the law, may or may not produce satisfactory and complete materials. It is premature for us to judge and at this stage, and we cannot proceed on the footing that section 211 of IPC would or would not apply and cannot be invoked in this case. Leaving open all contentions of both sides and for being raised at an appropriate stage, we reject this submission of Mr. Mohite and Mr. Pande.
40] Equally, merely because the allegations of criminal misconduct/ bribery and corruption are made against public servants and Section 13(1)(d) of Prevention of Corruption Act, 1988 is invoked does not necessarily mean that the said enactment would be applied to the public servants/ officials from the police force in the State of Punjab. We cannot accept the contention that in a private complaint, offence under Prevention of Corruption Act, 1988 cannot be alleged. Merely because this private complaint contains the allegations of bribery and corruption or criminal misconduct by public servants and they are arraigned as accused by a private party, does not mean that the complaint must be thrown out straight away. Now the Hon'ble Supreme Court has clarified the position in law. In the case of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Anr. reported in A.I.R. 2012 S.C. 1185, this is what is observed by the Hon'ble Supreme Court:-
â18. The next question which requires consideration is whether the appellant has the locus standi to file a complaint for prosecution of respondent No.2 for the offences allegedly committed by him under the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (Cr PC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. Therefore, the argument of the learned Attorney General that the appellant cannot file a complaint for prosecuting respondent No.2 merits rejection. A similar argument was negatived by the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500. The facts of that case show that on a private complaint filed by the respondent, the Special Judge took cognizance of the offences allegedly committed by the appellant. The latter objected to the jurisdiction of the Special Judge on two counts, including the one that the Court set up under Section 6 of the Criminal Law Amendment Act, 1952 (for short, `the 1952 Act') was not competent to take cognizance of any of the offences enumerated in Section 6(1)(a) and (b) upon a private complaint. His objections were rejected by the Special Judge. The revision filed by the appellant was heard by the Division Bench of the High Court which ruled that a Special Judge is competent and is entitled to take cognizance of offences under Section 6(1)(a) and (b) on a private complaint of the facts constituting the offence. The High Court was of the opinion that a prior investigation under Section 5A of the Prevention of Corruption Act, 1947 (for short, `the 1947 Act') by a police officer of the designated rank is not sine qua non for taking cognizance of an offence under Section 8(1) of the 1952 Act. Before the Supreme Court, the argument against the locus standi of the respondent was reiterated and it was submitted that Section 5A of the 1947 Act is mandatory and an investigation by the designated officer is a condition precedent to the taking of cognizance by the Special Judge of an offence or offences committed by a public servant. While dealing with the issue relating to maintainability of a private complaint, the Constitution Bench observed:
"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.
Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Cr PC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an-act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision."
(emphasis supplied)
The Constitution Bench then considered whether the Special Judge can take cognizance only on the basis of a police report and answered the same in negative in the following words:- In the matter of initiation of proceeding before a Special Judge under Section 8(1), the Legislature while conferring power to take cognizance had three opportunities to unambiguously state its mind whether the cognizance can be taken on a private complaint or not. The first one was an opportunity to provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of an offence on a police report submitted to it by an investigating officer conducting investigation as contemplated by Section 5-A. While providing for investigation by designated police officers of superior rank, the Legislature did not fetter the power of Special Judge to take cognizance in a manner otherwise than on police report. The second opportunity was when by Section 8(3) a status of a deemed public prosecutor was conferred on a private complainant if he chooses to conduct the prosecution. The Legislature being aware of a provision like the one contained in Section 225 of the Cr PC, could have as well provided that in every trial before a Special Judge the prosecution shall be conducted by a Public-Prosecutor, though that itself would not have been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by Special Judge did not exclude by a specific provision that the only procedure which the Special Judge can follow is the one prescribed for trial of warrant cases on a police report. The disinclination of the Legislature to so provide points to the contrary and no canon of construction permits the court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a Special Judge on a private complaint for offences punishable under the 1947 Act."
(emphasis supplied)
The Court then referred to Section 5A of the 1947 Act, the provisions of the 1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150, State of M.P. v. Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh Chandra AIR 1957 M.B. 43 and held:"Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power under Section 8(1) to take cognizance of offences enumerated in Section 6(1)( a) and ( b),with this limitation alone that it shall not be upon commitment to him by the Magistrate. Once the contention on behalf of the appellant that investigation under Section 5-A is a condition precedent to the initiation of proceedings before a Special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor ; Nazir Ahmad v. King-Emperor and ending with Chettiam Veettil Ammad v. Taluk Land Board , laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. Once Section 5-A is out of the way in the matter of taking cognizance of offences committed by public servants by a Special Judge, the power of the Special Judge to take cognizance of such offences conferred by Section 8(1) with only one limitation, in any one of the known methods of taking cognizance of offences by courts of original jurisdiction remains undented. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take cognizance is upon receiving a complaint of facts which constitutes the offence. And Section 8(1) says that the Special Judge has the power to take cognizance of offences enumerated in Section 6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon commitment. It therefore, follows that the Special Judge can take cognizance of offences committed by public servants upon receiving a complaint of facts constituting such offences. It was, however, submitted that even if it be held that the Special Judge is entitled to entertain a private complaint, no further steps can be taken by him without directing an investigation under Section 5-A so that the safeguard of Section 5-A is not whittled down. This is the selfsame argument under a different apparel. Accepting such a submission would tantamount to saying that on receipt of the complaint the Special Judge must direct an investigation under Section 5-A, There is no warrant for such an approach. Astounding as it appeared to us, in all solemnity it was submitted that investigation of an offence by a superior police officer affords a more solid safeguard compared to a court. Myopic as this is, it would topsy turvy the fundamental belief that to a person accused of an offence there is no better safeguard than a court. And this is constitutionally epitomised in Article 22 that upon arrest by police, the arrested person must be produced before the nearest Magistrate within twenty-four hours of the arrest. Further, numerous provisions-of the Code of Criminal Procedure such as Section 161, Section 164, and Section 25 of the Indian Evidence Act would show the Legislature's hesitation in placing confidence on police officers away from court's gaze. And the very fact that power is conferred on a Presidency Magistrate or Magistrate of the first class to permit police officers of lower rank to investigate these offences would speak for the mind of the Legislature that the court is a more reliable safeguard than even superior police officers."
(emphasis supplied)
19. In view of the aforesaid judgment of the Constitution Bench, it must be held that the appellant has the right to file a complaint for prosecution of respondent No.2 in respect of the offences allegedly committed by him under the 1988 Act.â
â45. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.â
â17. The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315:
"......It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court-pointed out that (SCC p. 509, para 6) "punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi......"
41] In the light of the law laid down by the Hon'ble Supreme Court, it would not be possible for us to proceed on the footing that a private complaint is not maintainable. Particularly when in this case, we have found that the offences alleged against some of the petitioners are inter alia under the Prevention of Corruption Act, 1988. Therefore, when a composite private complaint has been filed, alleging offences punishable under Indian Penal Code as well, then all the more, it would not be proper for us to interfere with the investigations in pursuance thereof and at this stage. Moreover, the matter has been brought before us at the stage of directions issued under section 156(3) of the Cr. P.C. when the police are proceeding in accordance with law upon registration of F.I.R. The Metropolitan Magistrate is yet to take cognisance, and we have no doubt that he will consider all the materials before proceeding further and take cognisance.
42] Before parting, we would be failing in our duty if we do not refer to the judgments cited by Mr. Mohite. The first judgment in the case of RajendraSingh Vs. State of U.P. (supra), is on the principle that the defence raised and that of alibi is no ground to exercise the powers under section 482 of Cr. P.C. to quash criminal proceedings. There cannot be any quarrel about this principle and it is binding on us. However, we are not going into the allegations in the criminal complaint filed in the State of Punjab and/or the defence therein of the complainant Sunita Sureshkumar and her family members. We have independently considered the allegations in the subject complaint and as they are based on developments post registration of F.I.R. in the State of Punjab and the events taking place in Mumbai, that we are of the opinion that the criminal complaint cannot be quashed. Hence, this judgment cannot be of any assistance to the petitioners.
43] In the judgement of DilawarSingh Vs. Parvinder Singh @ Iqbal Singh and Anr. reportedin (2005) 12 S.C.C. 709 (supra), the requirement for sanction for prosecution under the Prevention of Corruption Act, 1988 is outlined. We say nothing about the requirement of such sanction because we are quite aware of the fact that section 19 will have to be abided by before the competent court proceeds further. In this case, that stage is yet to be reached. It would be therefore premature to make any observations with regard to applicability of section 19 of the Prevention of Corruption Act and, therefore, both judgements relied upon DilawarSingh (supra) and that of Hemant Dhasmana (2001) 7 S.C.C. 536 cannot be of any assistance to Mr.Mohite.
44] Mr. Mohite's heavy reliance on the judgment in A.R.AntulayVs. Ramdas Sriniwas Nayak reported in (1984) S.C.C. 500 is also not of any assistance to him. We are not called upon to decide as to whether the cognisance should be or should not be taken. The matter is at the stage of investigations. We are not holding nor our observations and findings as above, which are initial and tentative can by any means be considered as conferring jurisdiction in the Metropolitan Magistrate to take cognisance of offences under the Prevention of Corruption Act, 1988. That such a Magistrate can not displace the competent court and that of Special Judge under the Prevention of Corruption Act is clear. We do not vest the Magistrate in this case with any jurisdiction but all that we are considering is the argument as to whether mere reference or mere invoking of Prevention of Corruption Act, 1988 and alleging offences punishable there-under together with those under IPC would make a criminal complaint by a private party per se not maintainable or tenable. That such offences are also mentioned in the F.I.R. together with other and investigations are on, does not mean that the Magistrate has taken cognisance of the case. He is yet to take cognisance and, therefore, our order does not in any way run counter to the law laid down by the Constitution Bench of the Supreme Court in A.R. Antulay'scase (supra). Therefore, this judgment also cannot assist Mr. Mohite at this stage.
45] In the above facts and circumstances we are of the opinion that entertaining the writ petition invoking our jurisdiction under Article 226 of the Constitution of India and equally our inherent powers under section 482 of Cr. P.C. to quash the ongoing investigations in the F.I.R. would not be proper and valid. All the more, when we find that the allegations in the criminal complaint are not only serious but prima facie the complaint read as a whole, discloses the commission of a cognisable offence. What are these offences and under what provisions of Indian Penal Code or other law is a matter which is yet to be gone into and decided as the Magistrate is yet to take cognisance. In such circumstances, we do not deem it fit and proper to exercise our equitable and discretionary jurisdiction under the aforementioned provisions.
46] As a result of the above discussion, each of these petitions are dismissed. Rule is discharged in all of them.
47] At this stage, a request is made that the interim order directing not to file a charge-sheet be continued for a period of four weeks.
48] It is stated on behalf of the original Complainant and the Investigating Officer that the petitioners have raised a plea of the territorial jurisdiction of the concerned police station and, equally, that of the Court passing an order under Section 156(3) of the Code of Criminal Procedure, 1973. As a matter of law and on facts, we have not found any substance in these submissions of the petitioners. However, purely because the interim order was continuing till date, we are continuing it for a period of four weeks from today, beyond which period it shall not continue under any circumstances and we would not extend it for any reason.