JEHAN SINGH versus DELHI ADMINISTRATION

JEHAN SINGH

DELHI ADMINISTRATION

March 27, 1974

[M. H. BEG AND R. S. SARKARIA, JJ .]

Code of Crinzi11al Procedure, 1898, Sec. 561-A-lnherent powers of the H;gli Court-Interference with i111·estigation by tile Po/ice-F.J.R. pri111a facie dis· closes cognizable offence.

bus belonging to one Indraj and Sukhlal was in the/ossession of Munshi Ram, the driver, and other servants. The bus was remove from the custody of the said servants by the appellant and one Mr. Pathak. Munshi Ram filed F.I.R. disclosing these facts. Jn pursuance of the information the Police started investigaiton, arrested Jehan Singh, the appellant, and Pathak who were later on released on bail. The bus was seized by the Police. The proceeding in regard to Pathak was quashed by the High Court but not in respect of the appellant. The appellant contended before this Court that the F.I.R. did not disclose any offence and therefore, the investigation by PoliCe should be quashed.

Disn1issing the appeal,

HELD :-(I) That the decision of the Privy Council in Kliwaza Nudr Aluned':r case and the decision of the Supreme Court jn S. N. Basok's ca5e have settled lhe Jaw in regar~i to the High Court's power of interference at th~ interlocutory stage. The statutory power of the pol.ice 'o investigate the cogniz· able offences cannot be interferred with in exercise of the inherent power of the Court u/s 561-A of the Cri1ninal Procedure Code. Jn lhe present case. no charge-sheet· or complaint had been filed in the Court and the matter \Vas o;lill at the stage- of investigation by the Police. {796]

(II) Held further, that the first information report pri111a facie discloses the commission of cognizable offence by the appeJlant and his companions. Applying the decision of the Court in R. P. Kaiur's case held, the High Court was right in not interfering with the police investigation. The interference is justified only if the .LR. does not disclose any offence. In exercise of it~ jurisdiction u/s. 561-A, the High Court cannot embark upon an enquiry as to whether evidence in given case is reliable or not. (79R A-797 D]

King E111peror v. K/iu•aja Nazir Alin1ed, 71 l.A. at 213, followed.

State of We</ Bengal v. S. N. Hasak [1963] 2 S.C.R. 54, applied.

R. P. Knp11r v. State of P1111it1b, [1960] 3 S.C.R. 388, re1ied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 201 of 1970.

Appeal by Special Leave from the Judgment and Order dated the 3rd February, 1970 of the Delhi High Court in Crl. Mis. (M) No. 93 of 1969.

S. M. 11a11d, for the Appellant.

S. N.-Prasad and R. N. Sachthey for Respondent No. I.

The Judgment of the Court was delivered by

SARKARIA, J.-This appeal by special !~ave. is directed a~ain~t .an order of learned single Judge of the Delhi High Court, . d!sm1ssmg appellant's petition made under s. 561-A of the Code of Cnmmal Pro-cedure. The material facts are these :

On June 15, 1969, report was lodged in Police Station, Tilak Mark, New Delhi, by one Munshi Ram alleging that he was employed as Driver of bus, DLP 3867, belonging to Jndraj Singh and Su1<h Lal of Chirag Delhi. On June 13, 1969 at 6 p.m., he stopped the bus at Mathura Road to talk to one Devi Singh son of Ganesh Lal. Devi Singh invited the informant and his companions, Mahinder Singh Con-ductor and Sher Singh helper, to soft-drinks at nearby shop. Leavmg the bus unattended, they proceeded to that shop. In the meantime, Jehan Singh appellant, Sharma, R. K. Pathak and another man of 'stout-build' got into the vehicle. The stout man took the steering wheel, and all the four drove away in the bus despite the protests of the informant and his companions. Munshi Ram then went to Chirag Delhi to inform his employer Indraj Singh, but found the latter absent. It was also mentioned in the report that Pathak and Sharma were em-c ployed in Scindia House.The police started investigation and arrested Jehan Singh appellant, and R. K. Pathak, Assistant Manager of the Industrial Credit Co. Ltd., Scindia House (hereinafter called the Company). They were later released on bail. The bus was also seized by the police from the pos-session of the Company.

Pathak and the appellant filed two separate petitions under s. 561-A, Cr. Procedure Code challenging the police proceedings in pursuance of the First Information Report made by Munshi Ram.

The learned Judge by common judgment allowed Pathak's peti-tion and quashed the proceedings against him, but dismissed the appel-lant's petition with this observation : "If Jehan Singh had transferred all his rights in the bus, though against the stipulations in the hire-purchase agree-ment, it would be matter for consideration of the trial court whether he could be regarded guilty of the offence of theft if the version contained in the first information report is proved."

At the outset, we inquired from Shri Anand, learned Counsel for the appellant, whether the proceedings sought to be quashed were pending in any court or before the police. We are told that at the date of the filing of the petitions under s. 561-A, Cr. Procedure Code, no d.ar_ge-sheet or complaint had been laid in court. The matter was still at the stage of investigation by the police.

. Shri Prasad, learned Counsel for the State contends that lhe peti-G oons under s. 561-A to quash the proceedings which were being con-ducted in the course of policy investigation, were not competent. He Jias referred to King Emperor v. Khwaja Nazir Ahmad(!) and State of West Bengal v. S. N. Basak('). It is maintained that in these cir-cumstances, the petitions of both Pathak and the appellant Jehan Singh ought to have been dismissed as premature.

On the other hand Shri Anand maintains that his case falls within one of the exceptions to the general rule enunciated in the cases cited

I I) 71 I.A. 203 at 213. (2) (t963] 2 S.C.R. 54.

by Shri Prasad. Reliance has been placed on R. P. Kapur v. State of Punjab(').

It appears to us that the preliminary objection raised by Shri Prasad must prevail.

In King Emperor v. Khwaja Nazir Ahmad (supra), their Lordship -of the Privy Council pointed out that "the functions of the judiciary .and the police arc complementary, not overlapping" and that the "court's functions begin when charge is preferred before it, and not until then". It was added that "it has sometimes been thought that s. 561-A 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 possesses shall be preserved".

The principle enunciated in Khwaja Nazir Ahmed's case (supra) ·was applied by this Court in S. N. Basak's case (supra). Therein First Information Report was registered at the Police Station to the .effect, that S. N. Basak along with three others had committed offences under ss. 420, 120-B read withs. 420, Penal Code. The police started investigations on the basis of that report. Basak accused surrendered before the Judicial Magistrate and was enlarged on bail. Subsequent-D 1y, he moved the High Court by petition under ss. 439 and 561-A of the Code of Criminal Prncedure praying that the proceedings pending .against him be quashed. At the time he filed the petition them was no case pending before any court. . The High Court quashed the police investigation holding that "the statutory power of investigation given to the police under Chapter XIV is not available in respect ol an offence triable under the West Bengal Criminal Law Amendment (Special ·Courts) Act, 1949 and that being so, the investigation concerned is without jurisdiction". Against that order, the State came in appeal before this Court on certificate granted by the High Court under Art. 134(1) (c). Allowing the appeal, this Court speaking through J. L. Kapur J., observed :"The powers of investigation into cognizable•offences arc contained in Chapter XIV of the Code of Criminal Proce-dure. Section 154 which is in that Chapter deals with infor-mation in cognizable offences and s. 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 without authority from Magis-trate and this statutory power of the police to investigate can-not be interfered with by the. exercise of power under s. 439 or under the inherent power of the court under s. 561-A of Criminal Prncedure Code".

The basic facts in the instant case are similar. Here also, no -police challan or charge-sheet against the accused had been laid in court, when the petitions under s. 561-A were filed. The impugned ·proceedings were those which were being conducted in the course of

Here also, no The impugned

police investigation. Prima facit, therefore, the rule in Basak's case would be attracted.

Jn R. P. Kapur v. The State of Punjab (supra), it was clarified that the rule as to non-interference by the High Court, in the exercise of its inherent powers, with the proceedings at an interlocutory stage, was not an inflexible one, and there are some categories of cases where the inherent jurisdiction can and should be exercised for quashing the pro-ceedings. Gajendragadkar J., as he then was, speaking for the Court indicated one of such categories thus :

"Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is matter merely of looking at the complaint or the First Informatin Report to decide whether the offe11ce alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the cri-minal court to be issued against the accused person."

It was held that since the allegations made in the First Information Report against the appellant therein did constitute offences alleged, there was no legal bar to the institution or continuance of the proceed-ings against him. It was further laid down that in exercise of its juris-diction under s. 561-A, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not.

The question, therefore, to be considered is, whether in the instant case, the allegations made in the First Information Report, did not, if assumed to be correct, constitute the offence of theft or its abetment against the appellant.

plain reading of the First Information Report would show that the answer to this question must be in the negative. It is alleged there-F in that the bus (DLP-3867) belonged to Indraj and Sukhlal of Chirag .Delhi and was at the material time in their possession through their ser-vants, Munshi Ram Driver, Mohinder Singh Conductor and Sher Singh Helper, and that it was removed in the teeth of opposition from them, without their consent, from their custody or possession by four persons including Jehan Sin.~h and R. K. Pathak, who all entered into the vehicle which was then driven by one of them, who was of stron~ build, medium height, dark complexion .etc. to Scindia House. In substance the allegation was that the wrongful removal of the bus was the con-certed action of the appellant Jehan Singh and R. K. Pathak and their un-named companions. Prima facie, the allegations in the First Infor-mation Report, if taken as correct, did disclose the commission of cognizable offenee by the appellant and his companions. May be, that further evidence to be collected by the police in the course Vi i1i;-,;;ti-II gation including thy hire-purchase agreement, partnership deed and the receipt etc. would confinn or falsify the allegations made in the First Information Report. But, the High Court, at this stage, as was pointed out by this Court in R. P. Kapur's case (supra), could not, in

the exercise of its inherent jurisdiction, appraise that evidence or enquire as to whether it was reliable or not.

Might be, after collecting all the evidence, the police would itself submit cancellation report. If, however, charge-sheet is laid before the Magistrate under s. 173, Criminal Procedure Code, then all these matters will have to be considered by the Magistrate after taking cogni-zance of the case. We cannot, at this stage, possibly indicate what should be done in purely hypothetical situations which may or may not arise in this case.

For the foregoing reasons, we would hold that the petitions under s. 561-A were liable to be dismissed as pre-mature and incompetent. On this short ground, we would dismiss this appeal.

No observation unwittingly made with regard to the merits of the case, in the above judgment shall be taken into account to the prejudice of any of the parties.

Appeal dismissed.