1. Heard Sri Avanish Mishra, the learned counsel for the petitioner and Sri Rajendra Kumar Dwivedi, the learned Additional Government Advocate for the State as well as perused the documents available on record.
2. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the petitioner with the following prayer:
"It is most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and stay the order dated 09.11.2010 passed by the Chief Judicial Magistrate, Lucknow. It is further prayed that the Courts below be directed to disposed of the bail application of the applicant expeditiously preferably on the same day and during the pendency of the bail application the applicant be enlarged on interim bail by the court blow."
3. The relevant facts giving rise to the present petition as per version of the F.I.R. in brief are that Monika Tandon (deceased), the sister of the opposite party no. 3-Km. Neha Kapoor, D/o Sri Gulshan Kapoor, R/o 553/144-Kha, Adarsh Nagar, Police Station Alambagh, District Lucknow was married to accused-Ankur Tandon, S/o Sri Vineet Tandon, R/o C/457F-5, First Floor,Ganpati Apartment, Indra Nagar, within P.S. Ghazipur, Lucknow on 14.2.2004. The petitioner-Abhijeet Trivedi is the friend of Ankur Tandon (husband of the deceased). When Monika Tandon went to her marital home following her marriage, Ankur Tandon, his mother-Smt. Shashi Tandon, his younger brother-Anand Tandon and his sister-Shweta Tandon did not behave properly with her. They put a demand of Rs. 10.00 lacs before her to purchase a flat. They threatened her that in case their demand was not satisfied, she would be turned out from her marital home. They used to harass and torture her as well as beat her too. Ankur Tandon and his friend Abhijeet Trivedi used to bring young girls whenever she objected she was beaten by both of them. Ankur Tandon later on had filed a petition against her for dissolution of marriage. He also filed a false complaint against her under Sections 504/506 IPC. The deceased-Monika Tandon was so badly tortured by her husband and his family members as well as his friend Abhijeet Trivedi as mentioned above that she on 02.10.2010 had to commit suicide at her parental house where she was living at that time. The opposite party no. 3 lodged a written report of the incident on the same day at Police Station Alambagh. The police of P.S. Alambagh on the basis of written report of the opposite party no. 3, registered a case at Crime No. 308/2010, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act against as many as five accused including the petitioner for investigation.
4. Admittedly, the case is still under investigation. The petitioner is the friend of Ankur Tandon (husband of the deceased). The Investigating Officer during the course of investigation tried to arrest the accused but they were absconding, therefore, he submitted a report before the learned Chief Judicial Magistrate, Lucknow requesting him to issue non bailable warrant against the accused. The learned Chief Judicial Magistrate being satisfied with the report of the Investigating Officer ordered for issuance of non bailable warrant against the accused vide impugned order dated 09.11.2010 observing that they were absconding. The petitioner filed Writ Petition No. 10215 (MB) of 2010 under Article 226 of the Constitution of India before this court for quashing the F.I.R. lodged by the opposite party no. 3 against him. The writ petition was dismissed by the Hon'ble Division Bench vide order dated 12.10.2010 observing that FIR discloses commission of cognizable offence as such it could not be quashed. Thereafter the accused had approached before this Court again filing the present petition under Section 482 of the Code with the prayer referred above.
5. In this petition the only question involved for consideration before this court is "whether the impugned order passed by the learned Chief Judicial Magistrate, Lucknow issuing non bailable warrant against the accused-petitioner is illegal and is liable to be stayed?"
6. The petitioner has alleged that although he is the friend of Ankur Tandon but he had got no concern with the family affairs of his friend. He had neither made any demand of dowry nor put the deceased to harassment or torture. The opposite party no. 3 (complainant) has not levelled any allegation against him in her written report that he (petitioner) had ever made any demand of dowry from the deceased and put her to harassment and torture. In fact, he is being dragged by the complainant and the Investigating Officer only being friend of Ankur Tandon. The Investigating Officer has obtained non bailable warrant from the Court of Chief Judicial Magistrate to arrest the accused while no order for issuance of non bailable warrant could be passed by the learned Chief Judicial Magistrate, Lucknow during the investigation. The impugned order of issuing non bailable warrant against the accused passed by the learned Chief Judicial Magistrate is illegal and is liable to be quashed.
7. The submission of the learned counsel for the petitioner is that although the case is under investigation but the Investigating Officer during the course of investigation obtained non bailable warrant from the court of the Chief Judicial Magistrate, Lucknow to arrest the petitioner which is not permissible under Section 73 of the Code. The learned counsel for the petitioner, therefore, requests that the petition be disposed of with the observation that in case the petitioner appears before the Chief Judicial Magistrate, Lucknow and moves any application for bail, his bail application be disposed of by the learned Chief Judicial Magistrate expeditiously preferably on the same day. The learned counsel for the petitioner in support of his argument has placed reliance on cases Reshma Bano Vs. State of Uttar Pradesh and Others; [2008 (61) ACC 336], M. Viswanathan Vs. M/S S.K. Tiles and Potteries P. Ltd; [2008 (63) ACC 1001], Baijnath Jha Vs. Sita Ram and another; [2008 (63) ACC 75] and State Through CBI Vs. Dawood Ibrahim Kaskar and Others; (2000) 10 Supreme Court Cases 438 decided by the Hon'ble Apex Court.
8. Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate appearing on behalf of the State vehemently opposed the petition and argued that the present petition under Section 482 of the Code is not maintainable.
9. Sri Dwivedi submits that in the present petition the petitioner has prayed the main relief for staying the impugned order passed by the learned Chief Judicial Magistrate by which the learned Chief Judicial Magistrate has ordered for issuance of non bailable warrant against the accused as they are absconder which cannot be termed as main relief; rather such relief is interim relief. In fact, the petitioner has not prayed for any main relief. In this case the main prayer sought by the accused is in the nature of interim relief, therefore, the petition is not maintainable in the absence of any main relief.
10. Sri Dwivedi further submits that admittedly the case is under investigation, the petitioner had approached before this Court under Article 226 of the Constitution of India by filing Writ Petition No. 10215 of 2010 for quashing of the First Information Report which has been dismissed by the Hon'ble Division Bench of this court vide order dated 12.10.2010. The Hon'ble Division Bench while dismissing the writ petition did not grant any protection to the petitioner, therefore, no relief can be granted to the petitioner by this court in petition under Section 482 of the Code after dismissal of his writ petition.
11. Sri Dwivedi further submits that the power of the Investigating Officer to arrest an accused during the course of investigation is part of the investigation. The Investigating Officer tried his level best to arrest the accused but the accused were avoiding their arrest, therefore, the Investigating Officer submitted a report to the Chief Judicial Magistrate, Lucknow for issuance of non bailable warrant against them. The learned Chief Judicial Magistrate being satisfied with the report of the Investigating Officer ordered for issuance of non bailable warrant against the accused vide impugned order dated 09.11.2010. Since the case is under investigation, therefore, no investigation proceeding including the issuance of non bailable warrant by the Magistrate can be challenged by the petitioner under Section 482 of the Code. The petition is, therefore, not maintainable on this ground too. Sri Dwivedi in support of his argument has placed reliance on the law laid down by a Full Bench of this Court i.e. High Court of Judicature at Allahabad in the case of Ram Lal Yadava Vs. State of U.P. And Others; 1989 (26) ACC 181 (H.C., F.B.).
12. I have given active consideration to the rival submissions advanced by the learned counsel for the petitioner and Sri Rajendra Kumar Dwivedi, A.G.A. appearing on behalf of the State as well as perused the materials available on record and case laws cited by the learned counsel appearing for the parties.
13. In the case of Reshma Bano (supra), the petitioner had filed a composite petition under Section 482 of the Code as well as under Article 226 of the Constitution of India for quashing the proceeding initiated on the basis of First Information Report in Crime No. 316 of 2007 before this High Court. The Division Bench dismissed the writ petition. Thereafter the petitioner approached before the Hon'ble Apex Court by filing SLP. The Hon'ble Apex Court keeping in view the facts of the case and law laid down by it in its earlier judgment in the case of State of Haryana and others Vs. Bhajan Lal and others; 1992 Supp. (1) SCC 335 allowed the appeal and quashed the First Information Report on the ground that on the basis of materials available on record the appellant shall not be treated as accused.
14. In the case of M. Viswanathan (supra), the facts of the case were totally different from the facts of the present case. That case related to the quashing of the criminal proceeding. The High Court keeping in view factual aspect of the case and the law laid down by the Hon'ble Apex Court as well as the High Court quashed the criminal proceeding with the following observations that the matter related to civil and company dispute therefore the grievance of the complainant may be redressed through the Civil Forum or the Company Law Board. He cannot prosecute the respondents on the basis of bald allegation without any basis.
The complainant being aggrieved by the impugned order passed by the High Court preferred SLP before the Hon'ble Apex Court. The Hon'ble Apex Court keeping in view the parameters laid down in its earlier judgment in the case of State of Haryana and others Vs. Bhajan Lal and others; 1992 Supp. (1) SCC 335 laid down the scope and powers of the High Court while exercising its extraordinary power under Section 482 of the Code in the following terms:
"As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
The Hon'ble Apex Court allowed the appeal and quashed the order passed by the High Court with the following observations which is being extracted below:
"....18. In the instant case the only conclusions arrived at by the High Court is in para 23 of the judgment which have been quote above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a Civil Court or the Company Law Board. The High Court had referred to the four types of allegations. Some of the allegations are certainly not adjudicable by the Civil Court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 Cr. P.C. cannot be maintained. The impugned order is indefensible and is set aside..."
15. In the case of Baijnath Jha (supra), the Hon'ble Apex Court has dealt with the extent of inherent powers of High Court under Section 482 of the Code. In this case the matter related to quashing of criminal proceedings under Section 482 of the Code while in the present case no criminal proceeding is pending in any court; rather the matter relates to quashing of an order passed by the Chief Judicial Magistrate during the investigation on the report submitted by the Investigating Officer.
16. The learned counsel for the petitioner argued that the court during the course of investigation of a case cannot order for issuance non bailable warrant in the aid of the investigation. The learned counsel has placed reliance on a case decided by Hon'ble Apex Court State through CBI Vs. Dawood Ibrahim Kaskar and Others (supra). But the facts therein were totally different from the facts of the present case. The case before the Hon'ble Court related to the Bombay Blast Case in which the Investigating Officer (belonging to Civil Police) had already submitted charge-sheet against as many as 198 persons for trial. Out of 198 accused, 45 accused were shown as absconder. Later on the further investigation of the case was entrusted to the CBI by the government. The Investigating Officer of CBI had applied before the Special Court designated to try the Bomb Blast Cases, for issuance of non bailable warrant against the absconding accused under Section 73 of the Code but the learned Special Court rejected the application with the observation that the there is no provision under the Code which entitles the Investigating Officer to seek order of non bailable warrant against the accused. In appeal filed by the State through CBI, the Hon'ble Apex Court clarified the law. The Hon'ble Apex Court while allowing the appeal set aside the order passed by the Special Court and held that during the course of investigation order of non bailable warrant against the accused can be passed by the Magistrate/Court for appearance of the accused before it but not before the Investigating Officer. The Hon'ble Court has not observed that the Court can not issue non bailable warrant against the accused during the investigation.
17. In the case of Ram Lal Yadava (supra), the Hon'ble Full Bench of this court has considered the scope of inherent power of the High Court under Section 482 of the Code and held that the investigation by the police cannot be quashed by the High Court in the exercise of its power under Section 482 of the Code. The High Court has no power to stay the arrest of the accused during the investigation. In this case the Hon'ble Full Bench has considered so many case laws decided by the Hon'ble Apex Court as well as by this Court on this point.
18. In view of the law laid down by the Hon'ble Apex Court as well as by this Court as mentioned above, it is clear that the High Court in exercise of its inherent power under Section 482 of the Code cannot interfere with the investigation.
19. The power of the Investigating Officer to arrest the accused is part of the investigation during which the Investigating Officer can obtain warrant from the Magistrate having power to take cognizance of the offence to arrest the accused to produce him before the Magistrate when he is absconding.
20. As discussed above, the impugned order dated 09.11.2010 passed by the learned Chief Judicial Magistrate for issuance of non bailable warrant against the accused is not illegal as such the same is not liable to be stayed.
21. Moreover in the absence of any prayer for the main relief in the present petition, the petition is not maintainable for staying the impugned order and directing the Magistrate concerned in case the petitioner appears before him and moves any application for bail, the same be disposed of preferably on the same day.
22. Accordingly, the petition is dismissed.
03.1 2011 Santosh/-