IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No. 5474 (W) of 2007
Sardar Depinder Singh Bath & ors. – Petitioners
Versus
State of West Bengal & ors.
Respondents
Mr. Kishore Dutta
Ms. Sumita Shaw
for the petitioner
Mr. Joy Bhattacharya
for the State
Mr. Samiran Giri
for the respondent no.6
Before the Hon’ble Justice Dipankar Datta
Heard on : 22.2.2008
Judgment on :10.3.2008
It is claimed by the petitioners that fresh investigation in connection with
Bhowanipur P.S. Case No. 210 dated 13.10.2006 under Sections
420/467/468/471/120B of the Indian Penal Code, based on a First Information Report (incidentally the third in the series lodged by the
complainant/respondent no.6 in respect of the same cognizable offence alleged to have been committed in the course of the same transaction), is under way despite the fact that cases pursuant to two earlier complaints have been dropped/closed. Mr. Dutta, learned Counsel for the petitioners contended that there cannot be successive investigations in respect of the same allegation of cognizable offence committed in the course of the same transaction and that the investigation which is under way is absolutely illegal. He also submitted that malafide is the very foundation of the complaint lodged by the petitioner. In this connection, he invited the attention of this Court to the deed in question and submitted on the basis thereof that no reasonable person would arrive at a conclusion that the same is a forged deed. He, accordingly, prayed for quashing
of the FIR.
In support of his submissions Mr. Dutta relied on the following decisions:
(a) AIR 1955 SC 196 : H.N. Rishbud vs. State of Delhi in support of what
investigation, under the Code of Criminal Procedure (hereafter the Code),
generally consists of;
(b) AIR 1962 SC 605 : K.M. Nanavati vs. State of Maharashtra for the
proposition that investigation commences as soon as information is laid before
the Officer-in-Charge of a Police Station and it being a question of fact, does
not depend upon any irregularity committed in the matter of recording the First
Information Report by the concerned police officer; (c) (2001) 6 SCC 181 : T.T.
Antony vs. State of Kerala for the proposition that successive investigation in
respect of the selfsame offence committed in course of the same transaction is
not permissible; and (d) 1992 Supp (1) SCC 335 : State of Haryana vs. Bhajan
Lal for the proposition that the present proceeding being manifestly attended
with malafide and having been maliciously instituted with an ulterior motive,
the FIR and the consequent investigation are liable to be quashed. Mr.
Bhattacharya, learned Counsel for the State respondents relied on the contents
of paragraph 6 of the counter affidavit filed by the respondent no.9 to contend
that on receipt of the first two complaints lodged by the respondent no.6 (one
at Tollygunge P.S. and the other with the Anti-Cheating Department, Kolkata
Police, Lalbazar), certain preliminary enquiries were undertaken and two of the
petitioners were called in connection therewith. Subsequently on the basis of
an order passed by the learned Chief Judicial Magistrate, Alipore, 24 Parganas
(South) under Section 156(3) of the Code, Bhowanipore P.S. Case No.210 dated
13.10.06 referred to above was registered and investigation has commenced and
was being conducted till such time it was stayed by this Court. He submitted
that the earlier complaints not having been registered as First Information
Report (hereafter FIR) as is required under Section 154 of the Code and no
investigation having commenced in pursuance thereof, the petitioners have no
real cause of grievance and the petition is liable to be dismissed. Mr. Giri,
learned Counsel for the respondent no.6 adopted the submissions of Mr.
Bhattacharya and contended that there being no merit in the writ petition, the
same ought to be dismissed.
In reply, Mr. Dutta submitted that respondent no.6 in his counter
affidavit had admitted commencement of investigation by the Anti-Cheating
Department pursuant to the complaint lodged by him and that the proceeding has
since been dropped. In view thereof, he contended that the allegations of the
petitioner being admitted by the respondent no.6, the writ petition ought to be
allowed by passing appropriate orders.
Having heard learned Counsel for the parties, the short question that
arises for determination by this Court is as to whether there have been
successive investigations in respect of the same offence alleged to have been
committed by the petitioners in course of the same transaction or not, on the
basis of repeated complaints lodged by the respondent no.6 with the Tollygunge
P.S., the Anti-Cheating Department at Lalbazar and the Bhowanipur P.S. Once an
Officer-in-Charge of a police station is approached with a complaint disclosing
commission of cognizable offence, it is his duty to register it as an FIR in
terms of Section 154 of the Code and, thereafter, to commence investigation
without an order of the Magistrate but at the same time being under the
obligation, forthwith, to forward the FIR to the concerned Magistrate. As soon
as an FIR is registered, it becomes a public document and members of the public
are entitled to have certified copy thereof. Investigation conducted by the
police on the basis of such report, in accordance with the provisions of the
Code, must culminate in formation of an opinion under Sections 169 or 170 of
the Code, as the case may be, and a report in final form embodying the opinion
formed has to be forwarded to the concerned Magistrate under Section 173
thereof. The report forwarded under Section 173 is again a public document,
certified copy whereof may be obtained by members of the public.
Complaints were lodged by the respondent no.6 before the Tollygunge P.S.
and with the Anti-Cheating Department in January/February, 2006. It is the
claim of the petitioners that investigation was commenced on the basis thereof
and according to information received by them, the cases were dropped. It would
be relevant in this connection to quote paragraphs 10 and 11 of the petition:
” 10. That the petitioner nos. 1 and 2 received separate calls on 6.2.2006 from
an Officer of Anti Cheating Section of the Lalbazar Police Head Quarters who
asked the petitioner nos. 1 and 2 to attend the Police Head Quarters in
connection with an investigation regarding an alleged fraud committed on
7.1.2002 in regard to the said property. The petitioner nos. 1 and 2 attended
the Police Head Quarters on 6.2.2006 when Sri Partha Ganguly, an Officer of the
Anti Cheating Section made necessary enquiries and your petitioner nos.1 and 2
were allowed to leave the police station. According to the information of the
petitioner nos. 1 and 2 the case has been dropped.
11. That again on 21.7.2006 the petitioner no.1 received a telephone call
from the Tollygunge Police Station regarding investigation of the alleged fraud
committed in connection with sale of the said land. The petitioner no.1 went to
the police station along with the petitioner no.3 on 21.7.2006 when one S.I.,
Mr. Sen (full name not known) attached to the Tollygunge police station made
enquiries and on being satisfied asked the petitioner nos. 1 and 3 to go.
According to the petitioners’ information the case has been closed.”
(underlining for emphasis)
As per the own showing of the petitioners, they were called by an officer
attached to the Anti-cheating Section as well as an officer attached to the
Tollygunge P.S. for ‘enquiries’ pursuant whereto the cases were dropped/closed.
Whether or not an investigation has commenced pursuant to registration of FIR
is a question of fact, the onus of proof of which lay on the petitioners.
Neither have the petitioners produced before this Court any document to show
that the complaints lodged by the respondent no.6 were registered as FIRs nor
have they been able to produce reports in final form, forwarded to the
concerned Magistrate under Section 173 of the Code, containing opinion formed
by the Investigating Officers concerned that nothing incriminating against the
petitioners had been ascertained in course of investigation and that the cases
may be filed. In the absence of these two documents, it is impossible for this
Court to come to a finding that on a previous FIR (prior to Bhowanipore P.S.
Case no.210 dated 13.10.06 was registered) an investigation in connection
therewith had resulted in a report in final form. Investigation which has
commenced pursuant to an FIR cannot be closed without forwarding of report in
final form under Section 173 and, therefore, the contention raised by the
petitioners in the petition, as extracted above, that the cases were dropped
cannot be believed. It is the claim of the respondent no.9 in his counter
affidavit that certain preliminary enquiries were made by him. Paragraph 6 of
such counter affidavit being relevant in this context is set out below:
” 6. With reference to paragraphs 9,10,11,12,13 of the said petition I
say that a complaint was lodged by Sri Gursevak Singh alias Guru Sevak Singh
Bath, son of Late Gurbox Singh of 46B, Chakrabaria Road (North), Calcutta-700
025 on behalf of Sri Satjinder Singh Bath and Kuljinder Singh Kaur against
Sukbinder Singh and Depender Singh. On the basis of the said complainant Sarder
Dipender singh Bath and Sarder Harpreet Singh Bath of 107A, Hazra Road,
Kolkata-26 were called for the purpose of preliminary enquiry. I further say
that in course of enquiry it could be learnt that the premises No.107A, Hazra
Road although is situated under the jurisdiction of Tollygunge P.S. but the
alleged incident took place under the jurisdiction of Bhabanipore P.S. I further
say that in the aforesaid circumstances, the matter/complaint was referred to
Bhabanipore P.S. I also say that it could be subsequently learnt that
Bhabanipore P.S. on the basis of an order dated 18.9.2006 passed by the Ld.
C.J.M. Alipore, 24 Parganas(S) U/S 156(3) Cr.P.C. has already started
Bhabanipore P.S. Case No.210 dated 13.10.2006 U/S 420/467/468/471/120B I.P.C.
and investigation also taken up thereupon for the selfsame allegations made in
the complaints lodged with Tollygunge P.S. as well as Anti Cheating Department,
Lalbazar, Kolkata. I further say that no separate case was started in the
aforesaid circumstances on the basis of the complaint received both by
Tollygunge P.S. and Anti Cheating Department, Lalbazar where Bhabanipore P.S.
case referred to herein above was started and investigation was taken up and
there is no other case save and except the aforesaid Bhabanipore P.S. Case in
this connection”.
The plea of the petitioners raised in their affidavit-in-reply to the counter
affidavit of the respondent no.9 that “enquiry” referred to in paragraph 6 of
the counter affidavit is in reality “investigation” commenced by the concerned
police officer does not impress this Court by reason of their failure to prove
that the complaints lodged with the Anti-Cheating Department and the Tollygunge
P.S. were registered as FIRs.
That prior to registering an FIR it is open to an Officer in Charge of a
Police Station to undertake a preliminary enquiry is not res integra. It has
been held in the decision of Bhajan Lal (supra) as follows: “77. In this
connection, it will be appropriate to recall the views expressed by Mitter, J.
in P.Sirajuddin v. State of Madras in the following words : (SCC p.601, para 17)
“Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious mis- demeanour or
misconduct of the type alleged in this case and a first information is lodged
against, there must be some suitable preliminary enquiry into the allegations by
a responsible officer. The lodging of such a report against a person specially
one who like the appellant occupied the top position in a department, even if
baseless, would do incalculable harm not only to the officer in particular but
to the department he belonged to, in general The means adopted no less than the
end to be achieved must be impeccable.”
78. Mudholkar, J. in a separate judgment in State of Uttar Pradesh
v. Bhagwant Kishore Joshi at p.86 while agreeing with the conclusion of Subba
Rao, J. (as he then was) has expressed his opinion stating : (SCR pp.86-87)
“In the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a police officer to make preliminary
enquiries before registering an offence and making a full scale investigation
into it”.
79. We are in agreement with the views, expressed by Mitter, J. and
Mudholkar, J. in the above two decisions.
In the decision of the Apex Court reported in AIR 2008 SC 178 : Rajinder Singh
Katoch vs Chandigarh Administration, it has been held as follows : “8.
Although the officer in charge of a police station is legally bound to register
a first information report in terms of Section 154 of the Code of Criminal
Procedure, if the allegations made by them gives rise to an offence which can be
investigated without obtaining any permission from the Magistrate concerned; the
same by itself, however, does not take away the right of the competent officer
to make a preliminary enquiry, in a given case, in order to find out as to
whether the first information sought to be lodged had any substance or
not.************ *********
We are not oblivious to the decision of this Court in Ramesh Kumari
v. State (NCT of Delhi) & Ors. [(2006) 2 SCC 677] wherein such a statutory duty
has been found in the Police Officer. But, as indicated hereinbefore, in an
appropriate case, the Police Officers also have a duty to make a preliminary
enquiry so as to find out as to whether allegations made had any substance or
not.**********” On the authority of the law laid down in the aforesaid
decisions, it is held that the action of the concerned police officers in
embarking on a process of enquiry to find out facts as mentioned in paragraph 6
of the counter affidavit extracted supra cannot be faulted.
The contention of Mr. Dutta that the respondent no.6 has admitted
commencement of investigation by the Anti Cheating Department and that
proceeding has since been dropped does not impress this Court. It is settled law
that an action/order which is otherwise valid cannot be invalidated by reason of
any statement in any affidavit seeking to justify the action/order [see (2002) 1
SCC 520 : Pavanendra Narayan Verma vs Sanjay Gandhi PGI of Medical Sciences].
The cases cited by Mr. Dutta, in the light of his submissions, are now
taken up for consideration.
The decision in Rishbud (supra) only lays down the steps that would
constitute ‘investigation’ under the Code. The said decision has not decided any
question of law having application in the present case which would bind this
Court as a precedent. In any event, it could not be established beyond doubt
that the concerned police officers did take steps that constitutes
‘investigation’ as has been explained therein.
The Apex Court in the decision in Nanavati (supra) has held on facts
before it that investigation of the offence complained of had commenced after
Puransingh (the informant) had given information to Phansalkar (the concerned
police officer) and that the question whether investigation had commenced or
not, being a question of fact, would not depend upon any irregularity committed
in the matter of recording the FIR by the concerned police officer. At best,
the decision is an authority for the proposition that investigation into an
offence which has been commenced without entering the substance of the
complaint in the form prescribed by the State Government in this behalf does
not stand vitiated for any irregularity in entering the substance in the
prescribed form. This Court is unable to comprehend as to how this decision is
of any assistance to the petitioners. In terms of Section 157 of the Code, a
police officer may commence investigation on the basis of information or
otherwise if he has reason to suspect that a cognisable offence has been
committed. In urgent cases, police may have to take steps immediately for
prevention of further commission of crime without a formal FIR being
registered. But no investigation can be continued over a period of time and
completed in respect of a cognisable offence without a valid FIR. Copy of the
FIRs registered by Tollygunge P.S. and the Anti- Cheating Department have not
been placed before this Court by the petitioners, although complaints were laid
in January/February, 2006. This Court, thus, refuses to believe that there has
been investigation one after the other without there being valid FIRs.
In the absence of proof that FIRs were registered by the Tollygunge
P.S. as well as the Anti-Cheating Department on the basis of the complaints
lodged by the respondent no.6, this Court is unable to hold that there have been successive investigations in respect of commission of the same cognizable offence arising out of the same transaction and, therefore, the decision in T.T. Antony (supra) has no application on facts and in the circumstances of the case. This Court is also not impressed with the submission of Mr. Dutta that malafide being the foundation of initiation of the present proceeding, it ought to be nipped in the bud by applying the law laid down in Bhajan Lal (supra). It is by now well-settled that the High Court while hearing a petition under Section 482 of the Code or while hearing a writ petition for quashing of proceedings ought not to enter into the merits and demerits of the allegations simply because a petitioner alleges malus animus against the author of the FIR or the complainant, and that it would be justified in interfering only if the complaint does not disclose commission of any offence or prosecution is barred by any law or that the proceedings would result in a failure of justice (see AIR 2008 SC 787 : Sanapareddy Maheedhar Seshagiri vs. State of Andhra Pradesh).
Inherent powers of Court should not be exercised to stifle a legitimate
prosecution and great caution ought to be exercised in this behalf is the settled law.
This particular case satisfies none of the above conditions. The writ petition fails and accordingly stands dismissed. There shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)
Later : Learned Counsel for the petitioner prays for extension of the interim order passed on this petition. On the authority of the decision of the Apex Court reported in AIR 1952 SC 12 : State of Orissa vs. Madan Gopal Rungta, it is held that interim order, if any, passed in connection with a pending petition merges in the final order of dismissal and question of its extension does not arise.
Accordingly, the prayer stands rejected.
(DIPANKAR DATTA, J.)
