Hasan Ali Khan vs The State and Another

The petitioner prays for a writ of Certiorari to call for records relating to FIRs. in Crimes Nos. 5 of 1990 and 86 of 1990 issued by the respondents and quash the same on the ground that the FIRs. do not disclose commission of any offence.

The petitioner is carrying on business in the name and style of A1-Sameer Enterprises at 504, Mount Nassir Apartments, Saifabad, Hyderabad. In the same building another person by name Rafiullah Khan is carrying on business of export of mineral salts, etc., under the name and style of A1-Fatah Exim Services. The said Rafiullah Khan has given general power of attorney in favour of his son Rahamtullah Khan. The side Rafiullah Khan is having current account in the State Bank of India, Charminar branch. He hails from Nellore District. One Syed Abdul Alam, who is an employee of the State Bank of India, worked in the S.B.I. branch at Gudur in Nellore District, thus Rafiullah Khan and Syed Abdul Alam became friends. Syed Abdul Alam was transferred as Manager of the S.B.I., Charminar branch. The petitioner also has an account with the S.B.I., Charminar branch. The petitioner says that the said Rafiullah Khan, his son Rahamtullah Khan and another person Azad Khan approached the petitioner for a short term loan of Rs. 30 lakhs. When the petitioner expressed his inability, they gave two cheques of Rs. 15 lakhs each bearing Nos. 856756 and 856757, dated 20-12-1989 containing the endorsement "good for payment". The Bank Manager also assured that the cheques were as good as cash and served as good security for taking short term loan. They promised to repay the amount from out of the sums expected from foreign buyers of the said persons. The petitioner contacted the authorities of the Grindlays Bank Ltd. Abids, Hyderabad for the said loan against the aforesaid post-dated cheques, who promised to give a maximum amount of Rs. 25 lakhs provided cheques worth double the amount of loan to be given by the bank were pledged. On 25-11-1989 the said persons secured two more cheques of Rs. 9 lakhs each, one of them was issued by Dr. K. Butchi Reddy, Managing Director of Kancharla Farms, Liberty Road, Himayatnagar, Hyderabad, and these cheques were also endorsed "good for payment". On the strength of those cheques the petitioner took a loan of Rs. 25 lakhs under two promissory notes dated 25-11-1989 and 29-11-1989. He further says that when the payment became due, he contacted the said persons for clearing the loan taken from the Grindlays Bank Ltd. Out of the said amount of Rs. 25 lakhs the petitioner credited an amount of Rs. 5 lakhs to his account in the S.B.I., Charminar branch. Therefore, to clear the loan of the Grindlays Bank the petitioner issued cheques of Rs. 21 lakhs. While so, he learnt that in January, 1990 a complaint was given to the 1st respondent alleging cheating in respect of the said transaction. He also informed the S.B.I. authorities about the entire transaction but the 1st respondent registered Crime No. 5 of 1990 against him and others. The petitioner retained cheques of Rs. 30 lakhs issued by Rafiullah Khan to safeguard his interest for realisation of the amounts of the cheques issued by him in favour of the Grindlays Bank. As the validity of the cheques issued by the said persons was expiring he presented those cheques in the Central Bank of India on 18-6-1990, but the S.B.I., Charminar branch returned the cheques without clearing. On these facts another complaint was made by the S.B.I., Charminar branch on 26-6-1990 and 27-6-1990, on the basis of which Crime No. 86 of 90 C.C.S., was registered. On 25-8-1990 the petitioner was arrested and was released on bail on 27-8-1990. He says that wide coverage was given to his arrest stating that he was arrested for presenting a forged bank draft of Rs. 32 lakhs and he filed a private complaint against four newspapers, viz., Indian Express, Newstime, Deccan Chronicle and Siasat. It is stated that the entire action was full of mala fides by the Bank and the police officials. It is further stated that the S.B.I. has no authority to dishonour cheques of Rs. 30 lakhs. To settle the entire controversy as well as the liabilities of the parties, the petitioner was advised to file civil suits and accordingly he filed O.S. No. 1023 of 1990 on the file of the 2nd Addl. Judge, against the bank praying for appropriate declaration. For the recovery of the amount already realised by the petitioner, the bank filed another suit O.S. No. 256 of 1990 on the file of the 2nd Addl. Judge, City Civil Court, Hyderabad, against the petitioner, and O.S. No. 615 of 1990 in the same Court against Rahamtullah Khan and others for recovery of the amount of Rs. 12,59,000/-. It is stated that the allegations of fraud and cheating are subject matter of the said civil suits and that the criminal prosecution was initiated against him only as a pressure tactics. It is in these circumstances that the petitioner seeks a writ to quash the said FIRs.

The relevant averments in the counter-affidavit are as follows :- The petitioner is the proprietor of A1-Sameer Enterprises and one Rafiullah Khan and his son Rahamthullah Khan who holds General Power of Attorney of his father actively participate in the business carried on under the name and style "A1-Fateh Exim Services". The business carried on by them is export of mineral salts. The petitioner and Rahamthullah Khan hold independent accounts in the S.B.I., Charminar branch. One Syed Abdul Alam and Rahamthullah Khan became friends at Nellore where Syed Abdul Alam worked as branch manager. In Hyderabad their contacts were renewed and they hatched a plan to defraud the S.B.I., Charminar branch to a tune of Rs. 26 lakhs with the connivance and collusion of one another. On 2-1-1990 three cheques totalling Rs. 26 lakhs (two for Rs. 9 lakhs each and one for Rs. 8 lakhs) drawn by A1-Sameer Enterprises favouring the Grindlays Bank Ltd., were presented by the Grindlays Bank Ltd. The said cheques were received in clearing at S.B.I., Charminar branch on 2-1-90. In the usual course the accountant Mohd. Zulfaquar Ali handed over these cheques to Syed Abdul Alam, the Branch Manager. The cheques should have been either debited or returned on the same day, but the said Syed Abdul Alam did not return the cheques "referred to drawer" as there was no balance to the credit of the petitioner; instead he kept those cheques in his possession mala fide with an intention to cheat the bank. While balancing the clear Cash Book of 3-1-90, on 5-1-90 when it was found that the above cheques were missing Syed Abdul Alam was questioned but he could not give a satisfactory reply. He, however, admitted that he kept those cheques for an amount of Rs. 26 lakhs with him and handed over to K. Nageswara Rao, Branch Manager. By keeping the cheques under a pre-planned conspiracy he cheated the bank to a tune of Rs. 26 lakhs. He opened the accounts of the above firms without proper introduction taking undue advantage of his position and gave loans beyond his powers. The petitioner issued cheques for Rs. 26 lakhs knowing fully well that they will be dishonoured, but believed that the bank manager Syed Abdul Alam would conceal the facts about the balance in his account by illegally holding the cheques without the knowledge of the other staff. The said Syed Abdul Alam with the connivance of Rahamthullah Khan and the petitioner, successfully cheated the bank to a tune of Rs. 26 lakhs on account of illegal detention of cheques. The action is part of well-knit plan with the active connivance of the Bank Manager. The said Bank Manager, Syed Abdul Alam, was placed under suspension pending enquiry into the irregularities of misconduct. It is further stated that the petitioner managed to obtain four cheques bearing Nos. 856756, 8567757, dated 20-12-1989 each for Rs. 15,00,000/- and Nos. 967752 and 967753, dated 22-12-1989 each for Rs. 9 lakhs issued by the said Rahamthullah Khan and Dr. Butchi Reddy, respectively, which were marked "good for payment" by the Bank Manager Syed Abdul Alam, though the practice of making "Good for payment" was not in vogue at that time. The issuance of the cheques as well as the presentation of the cheques of these persons are part of fraudulent design to cheat the bank to raise the credit, by misusing the machinery of clearing system of the bank and gained Rs. 26 lakhs fraudulently. The said four cheques amounting to Rs. 48 lakhs were presented at Grindlays Bank Ltd. Abids branch and three cheques for Rs. 26 lakhs were issued for drawing the amounts from the S.B.I. Charminar Branch. It is stated that while the investigation in Crime No. 5 of 1990, under Sections 417 and 420, IPC, was in progress, the petitioner presented two cheques dated 20-12-1989 for a sum of Rs. 15 lakhs payable to A1-Sameer Enterprises at Central Bank of India Khairatabad branch by opening an account on 18-6-1990. The said cheques were managed to be taken by the Grindlays Bank Ltd., Abids, after drawing an amount of Rs. 26 lakhs. Those cheques were also marked "Good for Payment" by the said Syed Abdul Alam. When the said cheques were received in clearing from the Central Bank of India, Khairatabad branch, the complainant noticed and identified the cheques as per the endorsement "good for payment", immediately informed the Manager, Central Bank of India, Khairatabad branch and stopped further payment. Sri K. Nageswar Rao, the present manager of the S.B.I., Charminar branch gave a complaint on the basis of which Crime No. 86/90 under Sections 420 and 511, I.P.C. was registered at C.C.S. Hyderabad. The investigation was taken up and the petitioner was arrested and produced before the 11th Metropolitan Magistrate, Hyderabad, on 25-8-1990, but was ordered to be produced on 27-8-90 Monday. The said Rahamthullah Khan and the petitioner obtained anticipatory bail in Crime No. 5 of 90 of Mir Chowk Police Station. The investigation in Crime No. 5 of 90 was completed, but charge sheet could not be filed due to the interim order issued by the High Court. It is stated that the F.I.Rs. disclose cognizable offences and further investigations reveal that the petitioner''s activities fulfilled the requirements of the offences under which the FIR is issued. In the investigation it is established that the petitioner cheated S.B.I., Charminar Branch in collusion with Rahamthullah Khan and the bank manager Syed Abdul Alam and unlawfully gained Rs. 26 lakhs. There is clinching evidence to prove the guilt of the petitioner. In the circumstances, it is prayed that the writ petition may be dismissed.

Sri K. R. K. Varaprasad, the learned counsel for the petitioner, submits that on the face of the FIRs. no offence against the petitioner is made out, therefore, the FIRs. are liable to be quashed. He further submits that unless the FIR discloses an offence the police officers get no jurisdiction to investigate in the matter and therefore the entire proceedings and the action of the respondents are without jurisdiction and illegal; the petitioner is being prosecuted for not handing over the cheques to the police officers and that when bona fide civil litigation between the parties is pending in the civil Court these is no case for investigation and that till the civil suits are decided the respondents cannot proceed with the investigation. He, therefore, submits that the FIR may be quashed otherwise the petitioner would be put to unnecessary harassment and prosecution.

The learned Government Pleader for Home submits that the petitioner in collusion with one Rahamthullah Khan and the Manager of S.B.I., Charminar Branch Syed Abdul Alam, made unlawful gain of Rs. 26 lakhs and that further investigations have to be made, therefore the writ petition is not maintainable to quash the FIRs. He further submits that the petitioner and the other two persons have cleverly made a plan to cheat the bank and drew the amount; if at the stage of investigation the FIRs. are quashed, the crime will remain undetected, resulting in loss of public money.

On the rival contentions urged by the learned counsel two questions arise for consideration :

1) Under what circumstances can a First Information Report be quashed by the High Court pending investigation into an alleged cognizable offence, under its writ jurisdiction ?

2) Whether on the facts and in the circumstances of the case, are the FIRs. registered against the petitioner, liable to be quashed ?

Now the first question : Under the Code of Criminal Procedure, any officer in charge of a police station is under an obligation to record every information relating to commission of a cognizable offence, whether given in writing or orally (in which case he has to reduce the same to writing) in the prescribed book, commonly known as FIR. If such an officer refuses to do so, the aggrieved person may send the information in writing and by post to the Superintendent of Police concerned. He has power nay duty to investigate any cognizable case without the order of a Magistrate, but in case of non-cognizable case the powers of investigation cannot be exercised except with the order of a Magistrate having power to try such case or commit the case for trial. Where, however, a case relates to two or more offences of which at least one is cognizable and the other or others non-cognizable, then the case shall be deemed to be a cognizable case. But if an officer in charge of a police station refuses to record the information the aggrieved person may send such information in writing and by post to the Superintendent of Police concerned and if he is satisfied that if discloses the commission of a cognizable offence, he is bound either to investigate himself or to direct an investigation into the case by any police officer subordinate to him and such an officer has all the powers of an officer in charge of the police station in relation to that offence (Ss. 154 - 156 Cr.P.C.).

The earliest case which deals with the power of investigation of police and the inherent power of the High Court to quash all proceedings taken in pursuance of FIR and which is considered as ''the charter of the prosecution all over'' is AIR 1945 18 (Privy Council) . Lord Porter speaking for the Privy Council observed, -

"In their Lordships'' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved u/S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court''s functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561A 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 and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam J. may well have decided rightly in AIR 1938 Mad 129 : (1938 (39) Cri LJ 261) (M. M. S. T. Chidambaram v. Shanmugam Pillai). But that is not this case.

In the present case the police have under Ss. 154 and 156, Cr.P.C. a statutory right to investigate a cognizable offence without requiring the sanction of the court."

In that case against the Special Official Receiver, F.I.Rs. were filed complaining of his alleged activities in the receivership amounting to fraud and dishonesty. The High Court of Lahore quashed the investigations taken up pursuant to the FIR on various grounds. On appeal by the Crown, the Privy Council held that the grounds might be good for rejection of accusation and dismissal of prosecution launched upon the information if such a prosecution ultimately took place, should the Court be satisfied that no crime had been established and that that stage had not come. Observing, "the question so far is one of investigation, not prosecution," the appeal was allowed and the investigation was permitted to proceed.

R.P. Kapur Vs. The State of Punjab, :- In that case the Court refused to quash the criminal proceedings under its inherent power under S. 561-A, Cr.P.C. It is pointed that the Code of Criminal Procedure gives ample power to the police to investigate into any cognizable offence and that if the FIR and the charge sheet on the face do not make out a cognizable offence, the criminal proceedings can be quashed. It may be noted that it was a case of quashing the proceedings after investigation was completed and the prosecution was launched.

In S.N. Sharma Vs. Bipen Kumar Tiwari and Others, a FIR was lodged regarding an incident of attempt to murder in which the Additional District Magistrate of Gorakpur (the appellant) was named as the person at whose instance the victim was attacked. The appellant filed an application before the Magistrate concerned u/S. 159, Cr.P.C. alleging that he was falsely implicated at the connivance and instance of the local police and prayed to conduct enquiry by the Court and to direct the police to stop investigation. This petition was allowed. On an application filed under S. 561-A (old Code), the High Court of Allahabad quashed the order of the Magistrate and gave liberty to the police to proceed with the investigation. The appellant challenged this order of High Court before the Supreme Court with special leave. Dismissing the appeal, their Lordships referred to Khwaja Nazir Ahamad''s case (1945 (46) Cri LJ 413) (PC) supra and observed that that case dealt with the powers of the High Court u/S. 561-A (old) (482 new) Cr.P.C. whereas in the case before the Supreme Court the scope of S. 159 fell for consideration. It has been held that the scheme of Ss. 156, 157 and 159 is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case, that the power of the police to investigate has been made independent of any control by the Magistrate and that though Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of Mandamus restraining the police officer from misusing his legal powers, and the fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the Police cannot be a ground for holding that such a power must be read in S. 159 of the Code.

In Assistant Collector of Central Excise v. Jainson Hosiery Industries; Assistant Collector of Central Excise Vs. Jainson Hosiery Industries, the Supreme Court disapproved the order of the Punjab and Haryana High Court in releasing the seized goods under Art. 226 of the Constitution during the progress of the investigation. It is observed that the investigation of a criminal offence is a very sensitive phase where the investigating authority has to collect evidence from all odd corners, anything that is likely to thwart its cause may inhibit the interest of justice and that at the stage of investigation it is risky for the court to intervene except where manifest injustice cries for the Order of the Court.

In State of Bihar and Another Vs. J.A.C. Saldanha and Others, on the allegations that the empty railway wagons on the return journey from TISCO were loaded with pearl cokes without regular booking causing loss of revenue to the Railway, FIR was lodged against certain persons on the basis of which investigation was commenced by the Superintendent, Railway Police. On a complaint of harassment investigation was entrusted to CID. There were also complaints against the concerned officers of CID, so on the recommendation of the Chief Secretary, investigation was entrusted to Inspector General, Vigilance. While so, the officer of CID submitted final report. The Superintendent, Railway Police was asked to move the Court not to accept the final report and await report of the Inspector General, Vigilance, who was directed to investigate. The Chief Judicial Magistrate ordered to await the report of further investigation. This order was questioned before the High Court of Patna. A Full Bench of the High Court quashed the order of the Magistrate and gave directions regarding disposal of the case by the Magistrate. On appeal to the Supreme Court, one of the questions that arose for consideration was, ''whether, when the investigation was in progress the High Court was justified in interfering with the investigation and prohibiting or precluding further investigation on exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. Holding that the power of the police to investigate into a cognizable offence ordinarily should not be interfered with by the judiciary, it is observed State of Bihar and Another Vs. J.A.C. Saldanha and Others, :

"There is a clear-cut 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 and 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 u/S. 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 provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate."

To the same effect are the observations of the Supreme Court in State of West Bengal and Others Vs. Sampat Lal and Others, .

In Ram Lal Yadav and Others Vs. State of U.P. and Others, a Special Bench of the Allahabad High Court answering one of the questions referred to it, has held that if the power of investigation is exercised by a police officer mala fide the High Court cannot quash the investigation in the exercise of its inherent powers u/S. 482, Cr.P.C. but can do so under Art. 226 of the Constitution. It was also held that the power of the High Court u/S. 482, Cr.P.C. to quash an FIR or a complaint had to be exercised with reference to proceeding in the Court after the filing of a charge-sheet or a complaint and not with reference to investigation prior to the filing of the charge sheet. In that case applications u/S. 482, Cr.P.C. were filed praying that the FIR and the investigation on its basis be quashed and that a direction be granted to release the goods in favour of the applicants.

State of Bihar v. Sh. P. P. Sharma (1991) 2 Cri 113 : (1991 Cri LJ 1438) (SC) arose out of an application filed under Arts. 226 and 227 of the Constitution for quashing the FIR and the charge sheet on the ground that the prosecution was initiated as a result of malice. The High Court allowed the writ petition and quashed the proceedings. On appeal by the State of Bihar, the Supreme Court set aside the judgment of the High Court. It is observed that the attempt to avail writ remedy on this score is on the ascending scale and that the incalculable damage of interference would be on the efficacy of rule of law and maintaining order in the society. K. Ramaswamy, J. further observed thus (at p. 1455 of Cri LJ) :

"The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation, is, therefore, the foundation stone on which the whole edifice of criminal trial rests - an error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal. The duty of the investigating officer, therefore, is to ascertain facts, to extract truth from half-truth or grabbled version, connecting the chain of events. Investigation is a tardy and tedious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive force. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances."

Sri Varaprasad relied on State of West Bengal and Others Vs. Swapan Kumar Guha and Others, and State of U.P. Vs. R.K. Srivastava and Another, to support his contention that the FIRs. are liable to be quashed. In the case first mentioned, a FIR was lodged to the effect that partners of the firm ''Sanchaita Investments'' were carrying on business in violation of the provisions of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Investigation was taken up and certain record including books and documents and moneys were seized by police. The firm and its partners filed writ petition before the High Court of Calcutta to quash the investigation as no offence was disclosed on the face of the FIR and to direct return of the seized documents and moneys. The High Court allowed the writ petition. On appeal by the State the Supreme Court held State of West Bengal and Others Vs. Swapan Kumar Guha and Others, :

"The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. The observation of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted make this position abundantly clear. The propositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier noted, are based on sound principles of justice. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed.

xxx xxx xxx xxx xxx

Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. In considering whether an offence into which an investigation is made or to be made, is disclosed or not, the Court has mainly to take into consideration the complaint or the FIR and the Court may in appropriate cases take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to the conclusion whether an offence is disclosed or not. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual."

In the second case their Lordships of the Supreme Court held that if the allegations made in the FIR taken at their face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. In that case it was alleged in the FIR that one P. C. Saxena and Sri Ram Kumar Srivastava while posted and functioning as Accountant and Clerk-cum-Godown Keeper in the State Bank of India, Agricultural Development Branch, Budaun, respectively, entered into a criminal conspiracy with one Sarwant Singh and his wife to cheat the State Bank of India and in pursuance of the said criminal conspiracy an amount of Rs. 54,600/- was withdrawn on the basis of false credit entry made in the books of account of the Bank and connected credit and debit vouchers were also prepared and passed by the accused employees of the Bank. It was observed that the allegations in the FIR were vague. No particulars of the credit entries and debit entries were given. After the cheques amounting to Rs. 54,600/- were tendered and sent for clearance the amount was permitted to be withdrawn by the accused. The High Court allowed the writ petition against which an appeal was filed by the C.B.I. before the Supreme Court. Their Lordships pointed out thus :

"It is manifestly clear from the allegations in the FIR that the respondent or the other accused had no intention whatsoever to make any wrongful gain or to make any wrongful loss to the Bank. They had accepted the said three cheques amounting to Rs. 54,600/- and sent the same for clearance after debiting the L.O.C. account. The said cheques have been encashed and the money was received by the State Bank of India."

It may be noticed that in that case the proceedings to quash were initiated after filing the charge and not at the stage of investigation.

From the above discussion the following principles emerge :-

1) The powers of police under the Code of Criminal Procedure to investigate a cognizable offence are wide and unfettered; but the condition precedent for taking up investigation is that the police must have reason to suspect commission of a cognizable offence whether on information or otherwise and that can only be when FIR and other material disclose a cognizable offence.

2) Where the FIR and other material including the charge sheet do not disclose any offence, or the proceedings are initiated mala fide or amount to abuse of the process of Court, the criminal proceedings can be quashed by the High Court under inherent power u/S. 482. Cr.P.C. which can be invoked only after initiation of criminal proceedings by filing a charge sheet but not at the investigation stage. In considering the question whether an offence is made out, the allegations in the FIR and other material have to be taken on the face value. The High Court cannot consider the evidence on the basis of affidavit or otherwise and give a pre-trial finding as to the culpability of the accused.

3) Where investigation is taken up by the police on the basis of the FIR and other material which do not disclose any cognizable offence, or mala fide, or in colourable exercise of power any person aggrieved can invoke the jurisdiction of the High Court under Art. 226 of the Constitution to quash the FIR and the investigation for in these situations there exists no power of investigation in the police.

4) Normally under writ jurisdiction the High Court will not thwart or interdict any investigation into a cognizable case as it interferes with the course of detection of crime which is in the best interests of the society except where ''manifest injustice cries for the order of the Court''.

The second question :- In the instant case the sum and substance of the complaint on the basis of which the two impugned First Information Reports were issued is that the petitioner acted in collusion with the Manager of the S.B.I., Charminar branch and one Rahamthullah Khan and another and obtained cheques for a sum of Rs. 48 lakhs knowing fully well that there is no amount to the credit of the person issuing the cheques and those cheques were endorsed "good for payment" by the Bank Manager who is hand in glove with the petitioner; they were made use of for wrongful gain and an amount of Rs. 26 lakhs was withdrawn by the accused from the Grindlays Bank Ltd.; that an account was opened by the petitioner in the Central Bank of India, Khairatabad branch, these cheques were presented by making use of the bank clearing system to withdraw the amount and make wrongful gain. These facts, prima facie, to my mind, disclose offences u/Ss. 402 and 511, IPC and do not justify interference of this Court at the stage of investigation in the cognizable offences under writ jurisdiction. I am, therefore, not inclined to quash the FIRs. and interfere with the investigation at this stage. It is, however made clear that this judgment will not preclude the petitioner from challenging the FIRs. and the charge sheet after criminal proceedings are initiated by filing of the charge sheets, if so advised.

For all the above reasons, the writ petition is dismissed. No costs. Advocate''s fee Rs. 300/-.

Petition dismissed.