Asish Roy Vs. State of
West Bengal & ANR  INSC 1144 (16 July 2008)
JURISDICTION CRIMINAL APPEAL NO. 1120 OF 2008 (Arising out of S.L.P. (Crl.)
No.25/2008) Atif Iqbal Mansuri & Ors. ...Appellants Versus State of Mahrashtra
& ANR. ...Respondents
O R D E R
This appeal is
directed against the judgment and order dated 18.12.2007 passed by a Division
Bench of the High Court of Bombay in Crl. Writ Petition No. 1961/2007 whereby
and where under the writ petition filed by the appellants claiming, inter alia,
the following reliefs:
" a) pass an
order, direction or a Writ in the nature of Certiorari calling upon the records
and proceedings of C.R.No.224 of 2007 registered by the Agripada Police
b) pass an order,
direction and writ in the nature of Certiorari to quash and set aside the
proceedings under the C.R. No.224 of 2007 registered by the Agripada Police
c) to issue direction
or an order to stay all the proceedings in C.R.No.224 of 2007 registered by the
Agripada Police Station till the final disposal of the present petition; was
dismissed, stating :
" The learned
APP makes a statement on the basis of instructions from the investigating
Officer that the investigation of the crime is completed and he states that
charge sheet will be filed within one week. Therefore, after filing the charge
sheet, appropriate reliefs of discharge etc. are open to the petitioners. At
this stage, we refrain ourselves from entertaining the writ petition seeking
quashing of FIR."
-1- Mr. Uday Umesh
Lalit, learned senior counsel appearing on behalf of the appellants took us
through the records of the dispute to submit that the High Court committed a
serious error of law in passing the impugned judgment in so far as it failed to
take into consideration the fact that the First Information Report was lodged
by the second respondent herein mala fide and as a counter blast to the
application for visitation rights granted in favour of appellant No.1 by
interim orders dated 25.7.2007 and 4.9.2007 in a contempt petition filed by the
appellant herein being Contempt Petition No. 293/2007 for non-compliance of
orders dated 25.7.2007 and 7/8/2007 passed in writ petition No. 5703/2007.
It was, furthermore,
contended that even otherwise the second respondent had made false and
frivolous allegations which would be evident from the various documents filed
before the High Court.
learned counsel appearing on behalf of the State, when asked, very fairly
stated that the charge sheet has not yet been filed.
learned senior counsel appearing on behalf of the
complainant-respondent,however, would submit that investigation pursuant to the
First Information Report had been made and is almost complete and as such this
Court should not exercise its discretionary jurisdiction under Article 136 of
the Constitution of India, particularly, when in the event a charge sheet is
filed and cognizance of the offence is taken, the appellant, in terms of the
liberty granted by the High Court, would be entitled to raise all contentions
at the time of framing of charge.
As at present
advised, we are not inclined to consider the merit of the matter. There cannot
be any doubt, whatsoever, that a person accused of commission of a -2-
cognizable offence is entitled to move the High Court in its writ jurisdiction
with a prayer for quashing of the investigation undertaken in terms of a First
Information Report and/or quashing the same.
It is one thing to
say that the High Court would not ordinarily entertain such an application but
it is another thing to say that the High Court has no jurisdiction in this
respect at all.
The High Court in its
impugned judgment, with respect, has adopted a wrong approach. It is now
evident that the investigation by the investigating officer is not yet
complete. Investigation in the matter might have proceeded to a great extent
but the same by itself may not be a ground for refusing to entertain a writ
petition only because the accused will have another opportunity at the stage of
framing of charge.
Ors. - JT 2008(1)
SC340, this Court has held that in the event the First Information Report even
if given face value and taken to be correct in its entirety does not disclose
an offence a writ petition would be maintainable. However, having regard to the
allegations made therein it was held that the investigation could proceed in
respect of an offence under Section 406 thereof. We have referred to this
decision only for the purpose of showing that there are cases where the High
Court and this Court had interfered even at that stage.
We, therefore, are of
the opinion that the impugned judgment cannot be sustained. It is set aside
accordingly. The High Court is requested to consider the matter on merit
afresh. We would request the High Court to consider the desirability of
disposing of the matter as expeditiously as possible.
-3- It is stated
before us that the High Court had not stayed the investigation. Investigation,
therefore, may continue.
There cannot be any
doubt that all contentions of the parties shall remain open. The appeal is
allowed with the aforementioned observations.
Delhi, July 16, 2008.