ORDER
1. All these three writ petitions which are being heard together have been placed today for further hearing.
2. In Crl. Misc. Writ Petition No. 1911 of 2001 the prayer of the petitioner Atique Ahmad, who happens to be a Member of Legislative Assembly for the last 12 years continuously and claims to be popular equally between Hindus and Muslims belonging to Apna Dal, has come up with following prayers :
(i) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing them to apprise the petitioner and to submit all the pending cases against the petitioner till date along with actual status report so that the petitioner may not be victim of the fabrication of the false cases in future.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing the Principal Home Secretary/Home Secretary Government of Uttar Pradesh and the Director General of Police, Uttar Pradesh, Lucknow to issue official order directing all the officers referred in paragraph 56 who are opposite parties in Criminal Misc. Application No. Nil of 1999, under Section 156(3) Code of Criminal Procedure moved before the Chief Judicial Magistrate, Allahabad.
(iii) to issue a writ order or direction in the nature of Mandamus commanding the opposite parties directing them to ensure that the local administration specially the officials referred in paragraph 56 do not indulge any improper, illegal or false implication of the petitioner and his close members of the family and staff members in the fake case.
(iv) to issue a writ order or direction in the nature of Mandamus commanding the opposite parties directing them not to indulge in any act of harassment of the petitioner and his family members by resorting to illegal and unlawful attachment of the properties of the petitioner and to ensure proper safety and security to the petitioner and his family members.
(v) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing them not to violate the principles of Aricles 14, 19 and 21 of the Constitution of India as held by Hon'ble Supreme Court in innumerable decisions of the recent past.
2.1 Criminal Misc. Writ Petition No. 2391 of 2001 has been filed by the same petitioner Atique Ahmad for grant of following reliefs :--
(i) to issue a writ, order or direction in the nature of Certiorari quashing the First Information Report dated 9-4-2001 in case Crime No. 27 of 2001 under Sections 147, 148, 149, 352, 386, 504, 506, 323, 365, IPC. and Section 7 Criminal Law Amendment Act and 2/3 Uttar Pradesh Gangster and Prevention of Anti Social Activities Act and Section 3(1) of SC/ST Act, Police Station Shahganj, Allahabad, contained in Annexure No. 13 to the writ petition.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing the respondent Nos. 1 and 2 to appoint some judicial inquiry to inquire into the allegations of mala fide against the Police officials referred in this writ petition.
(iii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing them not to proceed in pursuance to the impugned First Information Report dated 9-4-2001 in any manner whatsoever in view of the clear fabrication of the same with ulterior and mala fide intention.
(iv) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties directing them not to arrest the petitioner Nos. 1 and 2 in pursuance of the impugned First Information Report dated 9-4-2001 in case Crime No. 27 of 2001 under Sections 147, 148, 149, 352, 386, 504, 506, 323, 365, IPC and Section 7 Criminal Law Amendment Act and 2/3 Uttar Pradesh Gangster and Prevention of Anti Social Activities Act and 3(1) SC/ST Act, Police Station Shahganj, Allahabad.
(v) to issue a writ, order or direction in the nature of Mandamus actions/proceedings as well as the arrest of the petitioner Nos. 1 and 2 in pursuance to the First Information Report dated 9-4-2001 in case Crime No. 27 of 2001 under Sections 147, 148, 149, 352, 386, 504, 506, 323, 365, IPC and Section 7 Criminal Law Amendment Act and 2/3 Uttar Pradesh Gangster and Prevention of Anti Social Activities Act and 3(1) SC/ST Act, Police Station Shahganj, Allahabad may kindly be stayed.
2.2 In Criminal Misc. Writ Petition No. 2373 of 2001 the prayer of the petitioner Haji Parvez Ahmad, who belongs to the Apna Dal is (i) to quash the First Information Report dated 9-4-2001 relating to crime case No. 27 of 2001 under Sections 147, 148, 149, 352, 386, 504, 506, 323, 365 IPC Section 7 Criminal Law Amendment Act, Section 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 and Section 3(1)-X SC/ST Act, Police Station Shahganj, District Allahabad. He claims, inter alia, to be a Mandal Adyaksha of Allahabad Mandal of Apna Dal, a political party duly recognised by the Election Commission (ii) to issue a suitable writ or writs, order or direction including a writ in the nature of Mandamus commanding the respondents not to arrest and prosecute the petitioner in pursuance of the aforesaid FIR dated 9-4-2001 relating to Crime No. 27/ 2001. Under Sections 147, 148, 149, 352, 386, 504, 506, 423, 365, IPC Section 7 Criminal Law Amendment Act, Section 2/3 the Uttar Pradesh Gangsters and Antl social Activities (Prevention) Act, 1986 and Section 3(1) of SC/ST Act of Police Station Shahganj, District Allahabad (ill) to issue a suitable writ or writs, order or direction including a writ in the nature of Mandamus commanding the respondents not to attach the property of the petitioner under Section 14 of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 in pursuance of the FIR dated 9-4-2001 relating to Crime No. 27/2001 under Sections 147, 148, 149, 352, 386, 504, 506, 323, 365, IPC Section 7 Criminal Law Amendment Act, Section 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 and Section 3(1)-X SC/ST Act of Police Station Shahganj, District Allahabad.
3. On 20-7-2001 when we had proceeded to hear Sri Siddharth Shankar Ray, learned Senior Counsel appearing on behalf of the prayers made in Civil Misc. Writ Petition No. 1911 of 2001 and Criminal Misc. Writ Petition No. 2391 of 2001 to some extent the learned Government Advocates Sri Mahendra Pratap as well as Sri Tripathi, appearing on behalf of the respondents raised a preliminary objection to our hearing challenging the very maintainability of these writ petitions.
4. What happened on that day stands reflected our order dated 20th July 2001, which reads as follows :
The learned Government Advocate, with reference to the statements made in the supplementary counter-affidavit filed today raises a preliminary objection that in view of the submission of the charge-sheet by the police of which cognizance has already been taken by the criminal Court, in view of the seven Judges Bench decision of this Court, now we have no jurisdiction to hear this writ petition any longer and the remedy of the petitioner, if at all is to approach this Court by filing an appropriate application under Section 482, Cr. P.C.
Sri Siddharth Shankar Ray, learned Senior Counsel appearing on behalf of the petitioner, after drawing our attention to the order dated 25-6-2001 of the Hon'ble Supreme Court in SLP (Criminal) Nos. 2245-46 of 2001, comes up with a prayer for adjournment on the ground that since the supplementary counter affidavit was served on the learned Counsel on record for the petitioner at 11.50 a.m. today and thus it will be in the interest of justice to afford time to the petitioner to file a rejoinder affidavit thereto, besides submitting that the seven Judges Judgment of this Court requires consideration in view of the Judgment of Hon'ble Supreme Court in Pepsi Food Ltd. v. Special Judicial Magistrate and Ors. 1998 SCC (Cri) 1400 and in view of the order dated 25-6-2001 passed by the Hon'ble Supreme Court in the two SLP's (Criminal) we are required to adjudicate this writ petition finally.
As prayed for Mr. Ray, with consent of the learned Government Advocate, list this case on Friday dated 10-8-2001 for further hearing under orders of Hon'ble the Chief Justice, since ours is not a regular Bench.
Sd/- Binod Kumar Roy, J.
Sd/- D. R. Chaudhaiy, J.
5. On 10th August, 2001 following order was passed :--
Mr. Mahendra Pratap, learned Government Advocate, proceeded to make his further submissions challenging the jurisdiction of this Court under Article 226 of the Constitution of India on the strength of 7 Judges Full Bench decision of this Court in R.L. Yadav v. State of U.P. 1989 (1) AWC 270. He laid special emphasis on paragrahs 17 and 20 of the said judgment.
2. Since we are required to assemble in the Chambers of Hon'ble the Chief Justice at 3-15 p.m. put up for further hearing and also for replies thereto on Friday dated 17-8-2001, the day of usual hearing of tied-up matter since ours is not regular Bench.
3. Liberty is granted to both sides, if they so like to move Hon'ble the Chief Justice for formation of our Bench even earlier.
4. All interim orders passed from time to time which have not stood rescinded or modified by the orders of the Supreme Court shall continue till further orders to the contrary.
Re-criminal Misc. Application No. (sic) of 2001 filed in Court today.
Sri S. S. Ray, the learned Senior Counsel, presses this application filed by the writ petitioner Atique Ahmed for the reasons stated in the Affidavit.
The learned Government Advocate, Sri Mahendra Pratap, however, comes up with a prayer for adjournment to have instructions in regard to the matter. Even though prima facie the prayer appears to be reasonable to provide him adequate Police Force for his security so that his activities could be watched 24 hours constantly by the Police Officials of the State Government Itself, since the time has run out, we are not in a position to hear detail submissions on this Application, we give an opportunity to the petitioner to move the Senior Superintendent of Police, Allahabad. If such an application is filed the same is required to be disposed of urgently in accordance with law by assigning reasons.
Sd/- Binod Kumar Roy, J.
Sd/- D. R. Chaudhary, J.
6. Today, Sri Mahendra Pratap, learned Government Advocate at the very inception came up with a stand that he does not intend to challenge our authority to proceed 10 dispose of these cases on merits but surprisingly again reiterated that because of the submission of the charge-sheet the second and their writ petitions have become infructuous. We find Sri Mahendra Pratap today swinging his views from one challenging our jurisdiction to proceed to hear these writ petitions on their merit to their maintainability. We repeatedly asked him as well as Sri Tripathi, learned Government Advocate, to re-formulate their preliminary objection in the light of the core questions raised by the petitioner Atique Ahmad, who appears to be a political leader and according to him the Government in power wants to settle its score with him and the other persons, who belong to his party in the garb of police powers through its own police employees to which both learned Government Advocate repeatedly referred to the 7 Judges judgment of this Court in R.L. Yadav v. State 1989 AWC 270 : 1989 Cri LJ 1013; (ii) a Full Bench judgment of 5 Judges of the Patna High Court in Surendra Sana v. State of Bihar AIR 1991 Patna 164 (to which one of us, Binod Kumar Roy, J. was a party) and (iii) State of H.P. v. Prithi Chand 1996 SCC (Cri) 210 : AIR 1996 SC 977 (paragraphs 10 to 13).
7. We requested to learned Government Advocate to show us even a single sentence in the 7 Judges judgment of our Court in R. L. Yadav (supra) that spite entertainment of writ petition under Article 226 of the Constitution of India, calling for counters and passing of certain orders permitting continuance of investigation subject to judicial review of this Court our jurisdiction stands quested no sooner a charge-sheet is submitted by the police in relation to which further attacks have been made that it was on account of mala fide settlement of political vendetta and arbitrariness on the part of the Government in power which breaches Article 14 guaranteed by the Constitution and the fundamental rights of the petitioners speech, expression and movement guaranteed under Article 19 and to the more sacred fundamental right of their life guaranteed under Article 21 of the Constitution, both learned Government Advocates failed to locate their finger on any statement of this Judges judgment.
8. We, however, find that in Paragraph 11 of this judgment the following declaration of law has been made :--
It is thus clear if the power of investigation is exercised by a police officer mala fide the High Court cannot quash the investigation in the exercise of its inherent powers under Section 482, Cr. P.C. but can do so under Article 226 of the Constitution.
Any investigation concludes with submission of final form or charge-sheet. In the instant case the charge-sheet has been submitted. Thus, we do not find that the aforementioned declaration of law negatives our view that our jurisdiction is intact in proceeding to hear these writ petitions on their merits.
9. So far as the 5 Judges Patna Full Bench judgment in Surendra Singh (supra) is concerned, suffice it to point out that that Was also a criminal writ petition which the Patna High Court had allowed overruling its earlier 3 Judges judgment categorically holding that even if a writ petitioner has exhausted his revisional remedy once before the Sessions Judge the constitutional remedy is still wide open.
10. Now, we come to the third judgment of the Hon'ble Apex Court strenuously relied upon by both learned Government Advocates, which is again of no help to support the preliminary objection in the peculiar facts and circumstances rather we feel safe to remind ourselves with reference to the earlier judgment of the Apex Court which we consider binding on us in preference to this judgment and which could not be shown to have not been followed subsequently by the Supreme Court and/or overruled.
10.1 In S.N. Sharma v. Bipan Kumar Tiwari AIR 1970 SC 786 : 1970 Cri LJ 764 Bhargava, J. speaking for yet another three Judges Division Bench had held as follows (at page 789) :.It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases when they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person' can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convicted that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of Mandamus restraining the police officer from misusing his legal powers.' (vide paragraph 7)
10.2 In Delhi Development Authority v. Lila D. Bhagat AIR 1975 SC 495 : 1975 Cri LJ 435 (paragraph 7) a three Judges Division Bench of the Supreme Court has clearly laid down as follows (at page 497 of AIR) :--.In an appropriate case it may be rather, is permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court.
(Emphasis supplied)
10.3 Recently a two Judges Division Bench of the Supreme Court speaking through D. P. Wadhwa, J. in M/s. Pepsi Foods Limited v. Special Judicial Magistrate AIR 1998 SC 128 : 1997 All LJ 2406 while setting aside the order dated 23-9-1996 passed by the Lucknow Bench dismissing the writ petition No. 1609 (MB) of 1996 filed under Articles 226 and 227 of the Constitution of India seeking quashing of the complaint in relation to which orders were passed by the Special Judicial Magistrate summoning the accused after consideration of a number of cases held as follows (at page 2412-2413 of AIR) :
21. The question which arises for consideration are if in the circumstances of the case, the appellant rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it took of the law and the facts of the case. We have, thus, to examine the power of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code.
22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : AIR 1992 SC 604 this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to. secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formula to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such gudeline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 of the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. The Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Arts. 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers, when the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some to the decisions of this Court laying down principles for the exercise of powers by the High Court under Arts. 226 and 227 may be referred to.
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26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exerciseing its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is a mandatory. If in a case like the present one the Courts find that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petitioner one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provision exist in the Code of revision and appeal but some time for immediate reliefs Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Courts as one under Arts. 226 and 227 could well be treated under Article 227 of the Constitution.
Earlier the Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 a Division Bench of ' the Supreme Court speaking through Pandian, J. when the entire matter stood only at the state of registration of the case and the investigation has not at all proceeded with, observed and held as follows (at page 619 of AIR) :--
53. The next point for consideration is whether Section 157 of the Code gives the police officers carte blanche drawing no legal bounds in the province of investigation and whether the powers of the police officers in the field of investigation are wholly immune from judicial reviewability.
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55. This Court on several occasions has expressed its concern for personal liberty of a citizen and also has given warning about the serious consequences that would flow when there is non-observance of procedure by the police while exercising their unfettered authority. Gajendragadkar, J. speaking for the Bench in R.P. Kapur v. State of Punjab (1960) 3 SCR 388 : 396 L AIR 1960 SC 866 State as follows (SCR p. 396) at page 870 AIR :
It is of utmost importance that investigation into criminal offences must always be free from any objectional features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on unfairly or with any ulterior motive. 56. Krishna Iyer, J. in Nandini Satpathy v. P. L. Dai (1978) 2 SCC 424, 430 : AIR 1978 SC 1025 has expressed his view thus (SCC p. 430, para 6) :.a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample under foot the guaranteed right of testimonial tacitness. 57. Bhargawa, J. speaking for the Bench in S.N. Sharma v. Bipen Kumar Tiwari (1970) 1 SCC 653 : AIR 1970 SC 786 has stated thus (SCC) Hence, the present petition 657-58, para 11) :
It appears to us that, though the Code of Civil Procedure gives to the police unfettered power to investigate all case's where they suspect that a cognizable offence has been committed, in appropriate cases as an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convicted that the power of investigation has been exercised by a police officer mala fide, the High Court always issue a writ of Mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 156 of the Code. 58. Mathew, J. in his majority judgment in Prabhu Dayal Deorah v. District Magistrate Kamrup (1974) 1 SCC 103, 114 : AIR 1974 SC 183 while emphasising the preservation of personal liberty has expressed his view thus (SCC p. 114, para 21) :
We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invalidating the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with procedure established by law. 59. Chandrachud, C.J. in Swapan Kumar Guha case (1982) 1 SCC 561 while examining the power of a police officer in the field of investigation of a cognizable offence has affirmed the view expressed by Mathews, J. and observed as follows (SCC p. 577, para 22) :
There Is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to Investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code. 60. The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echolons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.
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102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigidly formulate and to give an exhaustive list of myraid kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if .they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in this first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improvable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a notice of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the 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 or caprice.
104. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injurying his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilection and past prejudices of the complainant. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly make such false allegation is liable to be proceeded against under the relevant provisions of the Indian Penal Code namely under Section 182 or 211 or 500 besides becoming liable to be sued for damages.
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108. No doubt, there was no love lost between Sri Bhajan Lal and Dharam Pal, based on this strained relationship, it has been then emphatically urged by Mr. K. Parasaran that, the entire allegations made in the complaint due to political vendetta are not only scurrilous and scandalous but also tainted with mala fides, vitiating the entire proceedings. As it has been repeatedly pointed out earlier the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case, that is on November 21, 1987. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, we are sure, the investigations will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that, the complainant should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that Dharam Pal had laid the complaint only on account of this personal animosity, that by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. In this connection, the following view expressed by Bhagwati, C.J. in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288, 318 : AIR 1987 SC 877 may be referred to (SCC p. 318, para 16) (at page 891 of AIR) :
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 fides or political vendetta of first information or the complainant. Beyond the above, we do not wish to add anything more.
109. It was again contended that mala fides are writ large on the extraordinary interest evinced by the police officers and the hasty direction given by the SP. Needless to say that the question of mala fide exercise of power will assume significance only if an authority acts for unauthorised purposes. The proper test to be applied in such a case is as to what is the dominant purpose for which the power is exercised. The principle of dominant purpose is explained in the following decisions (1) King v. Minister of Health, (1929) 1 KB 619 (2) Rey v. Brighton Corporation ex parte, Shoosmith, 96 LT 762 (3) Easl Fitzwilliam's Wentworth Estate. The Consolidation Officer Ltd. v. Minister of Town and Country Planning (1951) 2 KB 284 (4) P. V. Jagannath Rao v. State of Orissa (1968) 3 SCR 789 : AIR 1969 SC 215 :
11. It is also worthwhile to note other declarations made by the Hon'ble Supreme Court relation to the inherent powers of this Court under Section 482, Cr. P.C. for quashing criminal prosecution.
11.1 In R.P. Kapur v. State of Punjab AIR 1960 SC 866 : 1960 Cri LJ 1239 a three Judges Division Bench of the Supreme Court speaking through P. B. Gajendragadkar, J. emphasised as follows :--.Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to intefere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction....
(Vide paragraph 6).
xxxxxx xxx xxx.It is utmost importance that investigation into criminal offences must always be free from any objectionable features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on unfairly or with any ulterior motive....
(Vide paragraph 9)
11.2 In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre AIR 1988 SC 709 the three Judges Division Bench speaking through Rangnath Misra, J. when a complaint was filed alleging committal of offences punishable under Sections 406, 467 read with Sections 34 and 120B of the Indian Penal Code on which the Metropolitan Magistrate 28th Court, Esplanade, Bombay directed issuance of summons, the validity of which was challenged through an Application under Section 482 of the Code of Criminal Procedure and the High Court dismissed the said application, while quashing the criminal prosecution against the accused the criminal prosecution against the accused appellants the Supreme Court held as follows :--
7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 8. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients to the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued.
11.3 Again in Bhaskar Chottoraj v. State of West Bengal AIR 1991 SC 317 : 1991 Cri LJ 429 yet another three Judges Division Bench speaking through Pandian, J. when the appellants were put on trial for committal of offences under Sections 448 and 380, Indian Penal Code after perusing the entire report as well as the statements of the witnesses recorded under Section 161, Cr. P.C. during the course of the investigation and on perusal of the records, it was held that, there is no material connecting the appellant with the alleged criminal trespass and thus no conviction can be recorded on mere vague allegations and as such the entire proceedings against the appellant is only an abuse of the process of of the Court and quashed the charge under Section 448, Indian Penal Code.
12. We also put on record that when we put a question to both the learned Government Advocates as to whether this Court while sitting as a single Judge under Section 482 Code of Criminal Procedure has jurisdiction to decide the Constitutional is-; sues raised by the petitioners invoking mala fide breach of Articles 14, 19 and 21 of the Constitution of India, they could not give any answer whatsoever except pointing out to the reliefs prayed for the petitioners and not to their pleadings making specific grounds in that connection.
13. Equally well settled is that this constitutional Court can take into account the subsequent events in order to do complete justice between the parties and to avoid multiplicity of litigations.
14. Thus, in view of the declaration of law made by the Supreme Court we have no hesitation in overruling the preliminary objection raised by both learned Government Advocates in not allowing us to proceed to hear the writ petitions on their merits and we hereby overrule it clarifying that we are mindful of the exceptions repeatedly pointed out by the Apex Court.
15. Now Mr. Kazmi, the learned Counsel for the petitioner in the first two writ petitions comes up with a prayer for adjournment on two grounds :-- (i) Because of uncertainty in regard to taking up of the cases for further hearing on account of certain apparent reasons Sri Siddharth Shankar Ray, his learned senior counsel could not come to Allahabad (ii) Because he has received a copy of the Counter-Affidavit in one of the tied up cases at 12 noon, which requires a reply Mr. Chaturvedi also prays to adjourn his case.
16. The prayer for adjournment has not been opposed and is thus granted.
17. Accordingly, we adjourn these cases for the day.
18. The office will place them on Friday dated 7th September, 2001, the day of hearing tied up cases, under orders of Hon'ble the Chief Justice.