Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 6005 of 2021 Petitioner :- Anil Sen And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shadab Alam Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Sri Shadab Alam, counsel for the petitioners and Sri Amit Sinha, learned AGA for the State-respondents.
2. This writ petition has been filed by the petitioners seeking quashment of FIR dated 10.07.2019 in respect of Case Crime No. 0572 of 2019 for the offence under Sections 406, 420, 504 and 506 of I.P.C., Police Station- Kaasna, District- Gautam Budh Nagar.
3. It has been submitted by learned counsel for the petitioners that the FIR has been lodged with the allegation that the petitioners have convinced the informant to invest money in their company in order to avail profit or interest bearing returns but without giving assured return alongwith interest, they have closed their office. It has been further submitted that the FIR has been lodged with false and frivolous allegations in order to harass the petitioners. He has further submitted that the petitioners have returned the money invested by the informant, hence, no offence under the relevant sections is made out against the petitioners. It has also been submitted that number of other persons who had invested money in the company of the petitioners, have also lodged FIR and have entered into compromise.
4. On the other hand, learned A.G.A. opposed the prayer for quashing of the FIR on the ground that the petitioners have committed offence of cheating and criminal breach of trust, hence, offence under the relevant sections is made out against the petitioners. As many as 13 FIRs have been lodged against the petitioners, which show the conduct of the petitioners under the same offence.
5. Prima facie, a perusal of the FIR discloses commission of cognizable offence, but the FIR is sought to be quashed on the ground that the petitioners have returned the amount invested by the informant, which cannot be a ground for quashing of the FIR.
6. In the latest judgment, the Apex Court in the case of Neeharika Infrastructure Private Limited vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, considered the powers of the High Court, while adjudicating a petition for quashing of FIR under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code, 1973. In Neeharika Infrastructure Private Limited (supra), the appellants challenged an interim order issued by the Bombay High Court, in a quashing petition filed under Section 482 Cr.P.C. and Article 226 of the Constitution. The Bombay High Court issued an interim order directing that "no coercive measures shall be adopted against the petitioners in respect of the said FIR". While examining the correctness of the said interim order, the Apex Court in para-80 has held as under :
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.”
7. In view of the aforesaid and considering the allegations made in the FIR and the material brought on record, it cannot be said that no prima facie case is made out against the petitioners, rather there appears to be sufficient ground for investigation of the matter. More so, learned counsel for the petitioners has failed to point out any irregularity in lodging the impugned F.I.R. and has also not placed any document(s), so as to interfere in the instant case in the extraordinary jurisdiction under Article 226 of the Constitution of India. Accordingly, we do not find any justification to quash the impugned F.I.R.
8. The petition lacks substance and is, accordingly, dismissed.
9. The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioners alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
10. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 12.8.2021 Monika