D. Venkatasubramaniam
& Ors. Vs. M. K. Mohan Krishnamachari & Ors. [2009] INSC 1574 (14
September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO._1766
OF 2009 (Arising out of Special Leave Petition (Crl.) No. 3271 OF 2007) D.
VENKATASUBRAMANIAM & ORS. ... APPELLANTS VERSUS With CRIMINAL APPEAL
NO.1767_ OF 2009 (Arising out of Special Leave Petition (Crl.) No. 3269 OF
2007) ABINESH BABU & ORS. ... APPELLANTS VERSUS
B.
SUDERSHAN REDDY, J.
1.
A short question that arises for our consideration in these
appeals is whether it is open to the High Court in exercise of its jurisdiction
under Section 482 of the Code of Criminal Procedure to interfere with the
statutory power of 2 investigation by police into a cognizable offence? If such
a power is available with the Court, what are the parameters for its
interference?
2.
It is well settled and this Court time and again, reiterated that
the police authorities have the statutory right and duty to investigate into a
cognizable offence under the scheme of Code of Criminal Procedure (for short
`the Code'). This Court, on more than one occasion, decried uncalled for
interference by the Courts into domain of investigation of crimes by police in
discharge of their statutory functions. The principle has been succinctly
stated way back in Emperor V. Khwaja Nazir Ahmad1 and the same has been
repeatedly quoted with respect and approval. The Privy Council observed that
"just as it is essential that every one accused of a crime should have
free access to a Court of justice so that he may be duly, acquitted if found
not guilty of the offence with which he is charged, so it is of the utmost
importance that the 1 AIR 1945 PC 18 3 judiciary should not interfere with the
police in matters which are within their province and into which the law
imposes upon them the duty of enquiry".
3.
The Privy Council further observed:
"In
India as has been shown there is a statutory right on the part of the police to
investigate the circumstances of an alleged cognizable crime without requiring
any authority from the judicial authorities, and it would, as their Lordships
think, be an unfortunate result if it should be held possible to interfere with
those statutory rights by an exercise of the inherent jurisdiction of the
Court. The functions of the judiciary and the police are complementary not
overlapping and the combination of individual liberty with a due observance of
law and order is only to be obtained by leaving each to exercise its own
function, always, of course, subject to the right of the Court to intervene in
an appropriate case when moved under Section 491, Criminal P.C. to give
directions in the nature of habeas corpus. In such a case as the present,
however, the Court's functions begin when a charge is preferred before it and
not until then. It has sometimes been thought that Section 561A has given increased
powers to the Court which it did not possess before that section was enacted.
But this is not so. The section gives no new powers, it only provides that
those which the Court already inherently possess shall be preserved and is
inserted, as their Lordships think, lest it should be considered that the only
powers possessed by the Court are those expressly conferred by the 4 Criminal
Procedure Code, and that no inherent power had survived the passing of that
Act."
(emphasis
supplied)
4.
In State of West Bengal V. S. N. Basak2, a Division Bench of three
Judges of this Court, while referring to the observations of the Privy Council
referred to hereinabove, observed:
"With
this interpretation, which has been put on the statutory duties and powers of
the police and of the powers of the Court, we are in accord."
and it
was further held:
"The
powers of investigation into cognizable offences are contained in Chapter XIV
of the Code.
Section
154 which is in that Chapter deals with information in cognizable offences and
Section 156 with investigation into such offences and under these sections the
police has the statutory right to investigate into the circumstances of any
alleged cognizable offence ...and this statutory power of the police to
investigate cannot be interfered with by the exercise of power under Section
439 or under the inherent power of the court under Section 561A of Criminal
Procedure Code".
This
Court, having found that the High Court had exceeded its jurisdiction in
interfering with the investigation, interfered 2 (1963) 2 SCR 52 5 with the
orders of the High Court by allowing the appeal preferred by the State.
5.
In State of Bhihar & Anr. V. J.A.C. Saldanha & Ors.3, a
three Judge Bench, speaking through Desai, J., after referring the precedents
including Khwaza Nazir Ahmad, held:
"There
is a clear cut and well demarcated sphere of activity in the field of crime
detection and crime punishment. Investigation of an offence is the field
exclusively reserved for the executive through the police department, the
superintendence over which vests in the State Government. The executive, which
is charged with a duty to keep vigilance over law and order situation is
obliged to prevent crime and if an offence is alleged to have been committed it
is its bounden duty to investigate into the offence and bring the offender to
book. Once it investigates and finds an offence having been committed it is its
duty to collect evidence for the purpose of proving the offence. Once that is
completed and the investigating officer submits report to the Court requesting
the Court to take cognizance of the offence under Section 190 of the Code its
duty comes to an end. On a cognizance of the offence being taken by the Court
the police function of investigation comes to an end subject to the provision
contained in Section 173(8), there commences the adjudicatory function of the
judiciary to 3 (1980) 2 SCR 16 6 determine whether an offence has been
committed and if so, whether by the person or persons charged with the crime by
the police in its report to the Court, and to award adequate punishment
according to law for the offence proved to the satisfaction of the Court. There
is thus a well defined and well demarcated function in the field of crime
detection and its subsequent adjudication between the police and the
Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir
Ahmad [1944] L.R. 71 IA 203.
... ...
... ... ...
This view
of the Judicial Committee clearly demarcates the functions of the executive and
the judiciary in the field of detection of crime and its subsequent trial and
it would appear that the power of the police to investigate into a cognizable
offence is ordinarily not to be interfered with by the judiciary."
6.
M.C. Mehta (Taj Corridor Scam) V. Union of India & Ors.4 was a
public interest litigation in which this Court, after noticing the precedents,
held that when a cognizable offence is reported to the police, they may after
investigation take action under Section 169 or Section 170 of the Code. If the
officer-in-charge of the police station forms an opinion that there is no 4
(2007) 1 SCC 110 7 sufficient evidence against the accused, the officer-in-
charge may, under Section 169 of the Code, release the accused from custody or,
if the officer forms an opinion that there is sufficient evidence, he may,
under Section 170 of the Code, forward the accused to a competent Magistrate.
After analyzing the earlier judgments, this Court observed:
...that
there is a clear-cut and well-demarcated sphere of activities in the field of
crime detection and crime punishment. Investigation of an offence is the field
reserved for the executive through the police department, the superintendence
over which vests in the State Government. The executive is charged with a duty
to keep vigilance over law and order situation. It is obliged to prevent crime.
If an offence is committed allegedly, it is the State's duty to investigate
into the offence and bring the offender to book. Once it investigates through
the police department and finds an offence having been committed, it is its
duty to collect evidence for the purposes of proving the offence. Once that is
completed, the investigating officer submits report to the court requesting the
court to take cognizance of the offence under Section 190 Cr.P.C and his duty
comes to an end."
7.
Now, we shall revert to the facts of the case in order to consider
whether the High Court properly applied the settled legal position to the facts
of the case.
8 On 18th
September, 2006, M/s IVR Prime Urban Developers Ltd. (`IVR' for short) entered
into a Memorandum of Understanding (MOU) with the respondent herein wherein it
was agreed upon by the respondent that he would facilitate the sale of about
600 acres of land situated at Sandavellor village of Kancheepuram District,
Tamilnadu in favour of IVR for a valuable consideration of Rs.28 lakhs per
acre. It was mutually agreed upon between the parties that IVR would retain an
amount of Rs.2 lakh per acre towards security for timely performance of
respondent's obligation under the MOU. The completion of the sale of the said
land was to be done in two phases. The first phase for an extent of 450 acres
was required to be completed before 31st November, 2006 and the second phase of
remaining 150 acres on or before 28th February, 2007. The respondent agreed to
arrange and facilitate registration of sale deeds of a minimum of 75 acres per
week in favour of IVR. The respondent had also undertaken the obligation to
collect and deliver all the relevant documents and records concerning 9 the
said lands as required by IVR for registration of the sale deeds. It was
further agreed upon that the retention amount accumulated to be forfeited by
IVR on failure to comply with the terms of the MOU by the respondent. The MOU
further provided that the same shall be cancelled by IVR if it was convinced
that the respondent was unable to perform his part of the obligation under the
MOU.
8.
On realizing that the respondent could facilitate the transfer of
only 64 acres of land in favour of IVR out of the huge chunk of the land, IVR
got issued legal notice to the respondent on 15th November, 2006, calling upon
him to facilitate and complete the sale of 450 acres of land within the agreed
timeframe. Since there was no response to the legal notice, IVR terminated the
MOU on 30th November, 2006 and also forfeited the retention amount in terms of
the MOU.
9.
Thereafter, IVR entered into two MOUs with the owners of the land
and M/s Altirven Steels Limited for purchase of 330 acres and 200 acres of land
respectively. This is 10 the same land which the first respondent had
undertaken to facilitate the sale in favour of IVR. It is stated that pursuant
to the said MOUs, IVR has completed purchase of 346 acres of land by paying a
total sale consideration of Rs.121.35 crores.
10.
On 12th January, 2007, the respondent herein lodged first
information with the Sub Inspector of Police, Central Crime Branch, Tamilnadu
against the appellants alleging commission of offences under Sections 406 and
420 of the Indian Penal Code (IPC) and the same was registered on 26th
February, 2007 in FIR No. 93 of 2007. It is not necessary for the purpose of
disposal of these appeals to notice the details of allegations leveled in the
said First Information Report as we propose not to make any comment or
observation which may hamper further pending proceedings. The police, having
registered the case against the appellants had commenced its investigation.
Even while the investigation was in progress, for some inexplicable 11 reasons,
the respondent moved the High Court under Section 482 of the Code, in Criminal
Original Petition No. 6194 of 2007 seeking directions to the police to seize an
amount of Rs.2,28,00,000/- from the appellants claiming that he was entitled
for an amount of Rs.1,28,00,000/- for facilitating the registration of 64 acres
of land under the MOU which amount is alleged to have been withheld by the
appellants together with a sum of Rs.1 crore which is stated to have been paid
by him to the appellants. The petition filed in the High Court makes an
interesting reading in which it was stated that the following questions arise
for the consideration of the High Court:
A.
Whether the accused have not committed serious cognizable offences? B. Whether
the termination of MOU is legally and morally correct? C. Whether the
petitioner had not sustained a huge monetary loss of Rs.5 crores, which was
invested in the said project? 12 D. Is it not the duty of the respondent police
to seize the petitioner's money of Rs.1,28,00,000/- from accused Nos. 1 to 3?
E. Is it not the duty of the respondent police to seize the petitioner's money
of Rs.1,00,00,000/- from accused Nos. 4 to 6? F. Whether the claim of accused
Nos. 1 to 3 that the petitioner has to pay a sum of Rs.2 crores as liquidated
damages is justified?
11.
Be it noted, that there is no allegation of dereliction of any
duty on the part of the investigating agency. There is also no allegation of
any collusion and deliberate delay on the part of the investigating agency in
the matter of investigation into the case that has been promptly registered on
the information lodged by the respondent. The petition almost reads like a civil
suit for recovery of the money. As noted hereinabove, the petition has been
filed within one week of registration of the crime by which time the police had
already started serious investigation as is evident from the 13 material
available on record. It is also required to notice that none of the appellants
have been impleaded as party respondents to the petition filed under Section
482 of the Code. The State represented by its Sub Inspector of Police, Central
Crime Branch, Egmore, Chennai alone was impleaded as the respondent. The
investigating agency in its counter filed in the High Court stated that after
obtaining necessary legal opinion, a case was registered and `commenced the
investigation'. It is also stated in categorical terms that the police had
"inquired all the connected witnesses, recorded their statements and also
collected the material documents and confirmed commission of cognizable
offences by all the accused". The High Court, within a period of one month
from the date of filing of the petition, finally disposed of the same observing
that "it is obligatory on the part of the respondent police to conduct
investigation in accordance with law, including recording of statements 14 from
witnesses, arrest, seizure of property, perusal of various documents, filing of
charge sheet. It is also needless to state that if any account is available
with the accused persons, or any amount is in their possession and any account
is maintained in Natinoalised Bank, it is obligatory on the part of the respondent
police to take all necessary steps to safeguard the interest of the aggrieved
persons in this case." The Court accordingly directed the police to
expedite and complete the investigation within six months from the date of
receipt of a copy of the order.
The said
order of the High Court is impugned in these appeals.
12.
Shri Uday U. Lalit, learned senior advocate appearing for the
appellants, submitted that the impugned order suffers from serious and
incurable infirmities requiring interference of this Court. The respondent
virtually sought to recover the amounts from the appellants in a proceeding
filed under Section 482 of the Code which is 15 impermissible in law. It was
further submitted that the High Court exceeded its jurisdiction in issuing directions
to the investigating agency to act in a particular manner which is
unsustainable.
13.
Mr. K.V. Mohan, the learned counsel for the respondent, on the
other hand, supported the order and submitted that the High Court rightly
interfered in the matter in the interest of justice.
14.
The question that arises for our consideration is whether the
contents of the petition submitted by the respondent reveal any cause for
issuing directions guiding the Investigating Officer in the matter of exercise
of statutory power and duty to investigate into crime that had already been
registered and investigation was actually in progress? Whether such a direction
could have been issued by the High Court in exercise of its jurisdiction under
Section 482 of the Code? 16
15.
It is too fairly well settled and needs no restatement at our
hands that the saving of the High Court's inherent power is designed to achieve
a salutary public purpose which is that a Court proceeding ought not to be
permitted to degenerate into a weapon of harassment or persecution. It is
unfortunate that it is the exercise of the inherent power by the High Court in
this case that had ultimately resulted in harassment of the appellants as is
evident from the subsequent events.
Pursuant
to the impugned order, the investigating authorities have approached the
appellant No.1 (in S.L.P (Crl) No. 3269 of 2007), took him into custody and
exhibited him on television channel. The police have demanded to pay an amount
of Rs.2,28,00,000/- and threatened that he would be arrested if he fails to
comply with their demand. Accordingly, the appellants have paid Rs.10 lakhs in
cash in the police station itself and issued a cheque for an amount of Rs.2.18
cores drawn on Tamilnadu Mercantile Bank. However, the 17 cheque was not
encashed on account of the instructions to the bank to stop the payment in view
of the interim order dated 4th May, 2007 of this Court. The police offered
explanation stating that the matter was settled voluntarily between the parties
and therefore, the accused were not arrested and remanded to custody. It is
difficult to buy this idea that there was a settlement between the parties in
the police station. It is not difficult to discern as to how and under what
circumstances the appellants may have agreed to pay the amounts and also issued
a cheque. It is not known as to how and under what authority the police could
intervene and settle any disputes between the parties.
It is
needless to observe that the police have no such authority or duty of settling
disputes.
16.
It is the statutory obligation and duty of the police to
investigate into the crime and the Courts normally ought not to interfere and
guide the investigating agency as to in what manner the investigation has to 18
proceed. In M.C. Abraham & Anr. V. State of Maharashtra & Ors.5, this
Court observed:
"Section
41 of the Code of Criminal Procedure provides for arrest by a police officer
without an order from a Magistrate and without a warrant. The section gives
discretion to the police officer who may, without an order from a Magistrate
and even without a warrant, arrest any person in the situations enumerated in
that section. It is open to him, in the course of investigation, to arrest any
person who has been concerned with any cognizable offence or against whom
reasonable complaint has been made or credible information has been received,
or a reasonable suspicion exists of his having been so concerned. Obviously, he
is not expected to act in a mechanical manner and in all cases to arrest the
accused as soon as the report is lodged. In appropriate cases, after some
investigation, the investigating officer may make up his mind as to whether it
is necessary to arrest the accused person. At that stage the court has no role
to play. Since the power is discretionary, a police officer is not always bound
to arrest an accused even if the allegation against him is of having committed
a cognizable offence. Since an arrest is in the nature of an encroachment on
the liberty of the subject and does affect the reputation and status of the
citizen, the power has to be cautiously exercised. It depends inter alia upon
the nature of the offence alleged and the type of persons who are accused of
having committed the cognizable offence. Obviously, the power has to be
exercised with caution and circumspection."
17.
It is further observed:
5 (2003)
2 SCC 649 19 "The principle, therefore, is well settled that it is for the
investigating agency to submit a report to the Magistrate after full and
complete investigation. The investigating agency may submit a report finding
the allegations substantiated. It is also open to the investigating agency to
submit a report finding no material to support the allegations made in the
first information report. It is open to the Magistrate concerned to accept the
report or to order further enquiry. But what is clear is that the Magistrate
cannot direct the investigating agency to submit a report that is in accord
with his views. Even in a case where a report is submitted by the investigating
agency finding that no case is made out for prosecution, it is open to the
Magistrate to disagree with the report and to take cognizance, but what he
cannot do is to direct the investigating agency to submit a report to the
effect that the allegations have been supported by the material collected
during the course of investigation."
18.
This Court while observing that it was not appropriate for the
High Court to issue a direction that the case should not only be investigated
but a charge sheet must be submitted, held:
"In
our view the High Court exceeded its jurisdiction in making this direction
which deserves to be set aside. While it is open to the High Court, in
appropriate cases, to give directions for prompt investigation etc. the High
Court cannot direct the investigating agency to submit a report that is in
accord with its views as that would amount to unwarranted interference with the
investigation of the case 20 by inhibiting the exercise of statutory power by
the investigating agency."
(emphasis
is of ours)
19.
It is worthwhile to notice that the directions in the said case
were issued by the High Court of Bombay in writ petition filed in public
interest in which a grievance has been made that though the Provident Fund
Commissioner has lodged a complaint against several Directors, the
investigation has made no progress on account of the fact that the Directors
were Government servants and enjoying considerable influence. The High Court
issued series of directions which were challenged in this Court contending that
the High Court was in error in exercising jurisdiction under Article 226 of the
Constitution resulting in unjustified interference of the investigation of the
case. It is, therefore, clear that if the High Court, in exercise of its power
under Article 226 of the Constitution of India, cannot direct the investigating
agency to investigate the case in accord 21 with its views as that would amount
to unwarranted interference, equally no such directions could be issued in
exercise of inherent jurisdiction under Section 482 of the Code.
20.
Tested in the light of the principles aforesaid, the impugned
order, in our considered opinion, must be held to be an order passed
overstepping the limits of judicial interference. It was observed by this Court
on more than one occasion, that even in Public Interest Litigation proceedings,
appropriate directions may be issued and the purpose in issuing such directions
is essentially to ensure performance of statutory duty by the investigating
agency. The duty of the Court in such proceedings is to ensure that the
agencies do their duties in compliance with law. The inherent power of the High
Court is saved to interfere with the proceedings pending before a Criminal
Court if such interference is required to secure the ends of justice or where
the continuance of the proceedings before a 22 Court amounts to abuse of the
process of Court. Such a power under Section 482 of the Code is always
available to the High Court in relation to a matter pending before a criminal
Court.
21.
The High Court, in the instant case, did not even advert to the
relevant facts. As stated in the order itself, it was more guided by the
arguments made across the Bar that the police has not taken any steps to arrest
the persons and seize the amounts involved in this case from the appellants
though there is no such factual foundation as such laid in the petition. It has
altogether ignored the counter filed by the police that the police had already
examined ten witnesses within a short span of time after the registration of
crime and recorded their statements. The High Court, without recording any
reason whatsoever, directed the police that it is obligatory on their part to
record statements from witnesses, arrest, seizure of property and filing of
charge sheet. It is difficult to discern as to how such 23 directions resulting
in far reaching consequences could have been issued by the High Court in
exercise of its jurisdiction under Section 482 of the Code. The High Court
interfered with the investigation of crime which is within the exclusive domain
of the police by virtually directing the police to investigate the case from a
particular angle and take certain steps which the police depending upon the
evidence collected and host of other circumstances may or may not have
attempted to take any such steps in its discretion. It is not necessary that
every investigation should result in arrest, seizure of the property and
ultimately in filing of the charge sheet. The police, in exercise of its
statutory power coupled with duty, upon investigation of a case, may find that
a case is made out requiring it to file charge sheet or may find that no case
as such is made out. It needs no reiteration that the jurisdiction under
Section 482 of the Code conferred on the High Court has to be exercised
sparingly, carefully and with caution only 24 where such exercise is justified
by the test laid down in the provision itself.
22.
Yet another aspect of the matter, the appellants have not been
impleaded as party respondents in the criminal petition in which the whole of
the allegations are levelled against them. The High Court never thought it fit
to put the appellants on notice before issuing appropriate directions to the
police to arrest, seize the property and file charge sheet. This Court in
Divine Retreat Centre V. State of Kerala & Ors.6 observed:
"We
are concerned with the question as to whether the High Court could have passed
a judicial order directing investigation against the appellant and its activities
without providing an opportunity of being heard to it. The case on hand is a
case where the criminal law is directed to be set in motion on the basis of the
allegations made in anonymous petition filed in the High Court. No judicial
order can ever be passed by any court without providing a reasonable
opportunity of being heard to the person likely to be affected by such order
and particularly when such 6 (2008) 3 SCC 542 25 order results in drastic
consequences of affecting one's own reputation."
(emphasis
is of ours)
23.
The High Court in the present case, without realizing the
consequences, issued directions in a casual and mechanical manner without
hearing the appellants. The impugned order is a nullity and liable to be set
aside only on that score.
24.
We are not impressed by the submission made by the learned counsel
for the respondent that the High Court did not issue any directions but merely
disposed of the petition with the observations reminding the police of its
duty. The question that arises for consideration is whether there was any
occasion or necessity to make those "observations" even if they are
to be considered to be observations and not any directions. It is not even
remotely suggested that there was any deliberate inaction or failure in the
matter of discharge of duties by the police. There was no allegation of any 26
subversion of processes of law facilitating the accused to go scot-free nor
there is any finding as such recorded by the High Court in its order. The power
under Section 482 of the Code can be exercised by the High Court either suo
motu or on an application (i) to secure the ends of justice; (ii) the High
Court may make such orders as may be necessary to give effect to any order
under the Code; (iii) to prevent abuse of the process of any Court. There is no
other ground on which the High Court may exercise its inherent power.
In the
present case, the High Court did not record any reasons whatsoever why and for
what reasons, the matter required its interference. The High Court is not
expected to make any casual observations without having any regard to the
possible consequences that may ensue from such observations. Observations
coming from the higher Courts may have their own effect of influencing the
course of events and process of law. For that reason, no uncalled for
observations are 27 to be made while disposing of the matters and that too
without hearing the persons likely to be affected. The case on hand is itself a
classic illustration as to how such observations could result in drastic and
consequences of far reaching in nature. We wish to say no more.
25.
Learned counsel for the respondent placed reliance on the decision
of this Court in D.K. Basu V. State of West Bengal7 in support of his
submission that the police is entitled to arrest and seize property in exercise
of their power under the Code. We fail to appreciate the relevancy of that
decision to decide the case on hand. We are equally unable to appreciate the
relevancy of the decisions in Inder Mohan Goswami & Anr. V. State of
Uttaranchal & Ors.8 and Central Bureau of Investigation V. A. Ravishankar
Prasad & Ors.9. Those are not the cases where any directions were issued in
exercise of jurisdiction under Section 7 (1997) 1 SCC 416 8 (2007) 12 SCC 1 9 (2009)
6 SCC 351 28 482 of the Code to the police in the manner in which the High
Court did in this case. We find that none of the decisions upon which reliance
has been placed by the learned counsel for the respondent has any bearing on
the questions that had arisen for our consideration in these appeals.
26.
Before parting with the case, we may, however, observe that the
observations made in this order and the order passed by the High Court shall
have no bearing whatsoever on the pending proceedings which shall go on in
accordance with law.
27.
For the aforesaid reasons, we find it difficult to sustain the
impugned judgment of the High Court.
Leave
granted. The appeals are accordingly allowed and the impugned order is set
aside.
....................................J. (R.V. RAVEENDRAN)
...................................J.
NEW DELHI,
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