Chanan Mal Bansal vs State of Haryana

S.D. Bajaj, J.

Chanan Mal Bansal, his soninlaw Vinod Kumar Aggarwal and a security officer employed by him in his factory `Haryana Tubes Manufacturing Company Limited'' named Chander Parkash have all the three, filed the criminal miscellaneous application No. 5041M of 1989 for quashing of First Information Report No. 84 recorded in Police Station G.R.P. Railway Hisar, on June 13, 1989, under Sections 506/120B, 427/148/149/186 of the Indian Penal Code and Section 121 of the Railway Act on the grounds of its being wholly vague and baseless, mala fide and an after thought, abuse of the process of the Court lodged only to harass the petitioners, lame prosecution launched against the petitioners by Railways employees at the behest of the rival business house of Jindals and not making out the commission of any criminal offence against any one, even if accepted on its face value.

Author of the FIR concerned Railway employee Lal Chand A.E.N. even though not arrayed as a party in criminal miscellaneous aforesaid, has filed the criminal miscellaneous No. 5822 of 1989 for getting himself impleaded as party to the proceedings and two more criminal miscellaneous applications Nos. 5823 and 5824M of 1989 for bringing his reply and its annexures on record. I do not think the Court can look into anything more than the copy of the FIR, for purposes of quashing. All the three criminal miscellaneous applications filed by Lal Chand, are therefore, dismissed. The State Government of Haryana arrayed as respondent in the quashing petition has, however, not filed any reply.

I have heard Shri Paramjit Singh Patwalia, Advocate, learned Counsel for the petitioners, Shri S.C. Mahunta, learned Advocate General, Haryana for the State and carefully gone through FIR No. 84 dated June 13, 1989.

Relevant FIR reads "To : SHO GRP Hisar, dated 13.6.1989. It is submitted that there is unmanned level crossing gate at K.M. 137/1213 on RewariHisar Railway Line. Yesterday on 12.6.1989, the Court passed an order for the closure of this level crossing. Yesterday when we alongwith the police force went to the spot for closing the said level crossing where we had erected three rail posts, we received a letter No. 1271ST/89 from the Deputy Commissioner directing us not to take any action unless and until order of the court and other relevant papers are shown to the Deputy Commissioner. Today dated 13.6.1989, our counsel produced the Court order and the other relevant papers before the Deputy Commissioner. Thereafter, the Deputy Commissioner vide his letter No. 697ST/1989 ordered for cancellation of the latter dated 12.6.1989 issued by him and that action may be taken in accordance with the order of the Civil Court. So, today, I along with my PW1, IOW Gangman, Area Officer, SHO GRP and other officials reached the spot and removed the Chakral of one side of the Railway `Phatak''. Then, hooter was sounded in the factory of Shri Chanan Mal Bansal. As a result of it, about 100/150 persons in the form of mob came to us and told us that we should stop doing the work otherwise they would kill us. We had insufficient police force and, therefore, in order to save ourselves we fled away from the place. A Chakral which was removed by us was again put back in our presence and the trial posts which were installed by us yesterday were removed by them in our presence. This act has been done by the men of Chanan Mal Bansal by hatching a conspiracy to commit crime because the passage to their factory is closed if this railway phatak is closed. These persons can be identified if they are brought before us. They have caused obstruction in the discharge of our official duty and they have threatened to kill us and thus they have caused damage to the public property. Action be taken in accordance with law against them dated 13.6.1989 Sd/ Lal Chand AEN Sirsa". It would thus appear that the FIR brings out clearly the ingredients of the offences under Sections 506/120B/427/148/149 and 186 of the Indian Penal Code and section 121 of the Railways Act. In Padam Sain v. State, Vol. LXIY 1967 PLR 40, this Court speaking through Hon''ble Mr. Justice Gurdev Singh (as his lordship then was) observed. "The omission of the name of an accused person from a first information report by itself is not always fatal to the prosecution case nor is enough to justify the conclusion that the accused concerned has been falsely implicated. The value which has to be attached to the first information report has to be judged in the light of various circumstances including the nature of the crime, the position of the informant and the opportunity which he had to witness the part which each of the accused played. In a case like the present, when the allegation is that a mob of 700 to 800 persons had got out of control and set fire to shop burning three persons alive, it is unreasonable to expect the informant to describe the individual part which the various culprits had played in the affair. The prosecution can prove the participation of an accused person by other evidence, direct as well as circumstantial, and learned Counsel for the State has in this case asserted that there is abundant evidence, not only circumstantial but ocular as well, against each of the eleven petitioners to connect them with the various crimes for which they are being prosecuted."

Author of the FIR Lal Chand had gone to the place of occurrence for ensuring compliance of the civil Court decree of mandatory injunction regarding closure of the level crossing. Initially, petitioner No. 2 succeeded in thwarting compliance through undesirable interference of Deputy Commissioner, Hisar, on June 12, 1989, and thereafter on the following day as per allegations made in the FIR petitioner No. 1 thwarted the due compliance of the decree through the muscle power of his factory workers. There is thus no vagueness in the allegations made in the FIR nor is there any basis for characterising the FIR as baseless, mala fide and an after through or an abuse of the process of the Court. Complicity between Jindals and the railway employees may be proved by the petitioners in the course of evidence during prosecution if at all launched by the Investigating Agency against him after completion of the investigation or proved in the course of investigation itself, but it cannot certainly be availed of by him as a ground for getting the FIR quashed. Whether the allegations levelled in the FIR are true or false is not for this Court to decide at this stage. It is only to see if the allegations made in the FIR make out the commission of a cognizable offence. In similar circumstances in State of Bihar and another v. J.A.C. Saldanha and others, AIR 1980 SC 326, their Lordships of the Supreme Court observed, "There is clearcut 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 Investigation 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 provisions contained in Section 173(8). Then commences the adjudicatory function of the judiciary to determine whether an offence has been committed. The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would barely provide any reliable material. In the opinion of the Supreme Court, the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete."

Referring to the observations made in Muthusami Goundan v. State, AIR 1942 Madras 420 and Lakshmianand v. Sammiappa Goundar and others, AIR 1968 Madras 310, it has been urged that the weapons carried by the members of the unlawful assembly having not been described; much less stated to be dangerous likely to cause death, accused cannot be held guilty under Section 148 of the Indian Penal Code. Neither of the two authorities cited was, in fact, a case for quashing of the FIR. Even otherwise also the description as also the type of arms, carried by the members of the unlawful assembly, would get divulged in the course of investigation which is yet to come. The authorities cried do not, therefore, help the petitioners to make out a case for quashing of the FIR at their instance. Adarsh Kumar Goyal v. Union Territory of Chandigarh, 197377 Supplement to CLR 602 and Nirmal Singh v. State of Punjab, 1977(IV) Cri. L.T. 261, are both authorities of the view that in case the allegations in the FIR are absolutely vague and indefinite and do not even suggest that the petitioners were likely to commit an overt act so as to justify assumption that they are likely to commit a breach of peace, there was no justifiable reason to proceed further in the matter and the proceedings under Sections 107/151 taken against the respondent on its basis are liable to be quashed. In the present case, as already stated, there is no vagueness in the allegations obtaining in FIR No. 84 dated June 13, 1989, and as such investigation on its basis cannot be termed as an abuse of the process of the Court. Both these authorities as also the argument based thereon is, therefore, of no help to the petitioners.

Adverting to the observations made in U.K. Batra v. Union Territory, Chandigarh, 1977 CLR 25 and State of Karnataka v. L. Muniswami, AIR 1977 SC 1489, it was urged by the learned Counsel for the petitioners that this Court is entitled to quash the FIR if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or the ends of justice require that the proceedings ought to be quashed. As already stated, there can possibly be no quarrel with this legal proposition.

Adverting now to the law applicable on the facts and circumstances obtaining in this case, it must be said that the basic authority in this regard is Emperor v. Khwaja Nazir Ahmad, AIR 1945 Privy Council 18. The basic rule enunciated therein has consistently been approved by Hon''ble the Supreme Court in all its authoritative pronouncements thereafter. In State of West Bengal v. Swapan Kumar Gupta, AIR 1982 SC 949, after discussing various authorities for and against the proposition, their Lordships of the Supreme Court observed, "My learned brother A.N. Sen, J., has considered exhaustively the various authorities cited at the Bar by both the sides on the question as to the power of the courts to quash an investigation. I fully concur with his careful analysis of those authorities and would content myself with a broad indication of the trend of law bearing on the subject."

If anything, therefore, the judgment (in King Emperor v. Khawaja Nazir Ahmed, AIR 1945 Privy Council 18) shows is that an investigation can be quashed if no cognizable offence is disclosed by the FIR. It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to quality its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.

The position which emerges from these decisions and the other decisions which are discussed by brother A.N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power to the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received."

For the reasons given above, there is no merit in Criminal Miscellaneous Application No. 5041M89 filed by the three petitioners. The same is accordingly dismissed.

Petitions dismissed.