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PETITIONER: JEHAN SINGH

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT27/03/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1146            1974 SCR  (3) 794  1974 SCC  (4) 522  CITATOR INFO :  R          1982 SC 949  (19,58,64)  RF         1992 SC 604  (95)

ACT: Code  of  Criminal  Procedure,  1898,  Sec.  561-A--Inherent powers of the High Court--Interference with investigation by the Police--F.I.R. prima facie discloses cognizable offence.

HEADNOTE: A  bus  belonging  to  one Indraj and  Sukhlal  was  in  the possession  of Munshi Ram, the driver, and  other  servants. The bus was removed from the custody of the said servants by the  appellant and one Mr. Pathak.  Munshi Ram filed  F.I.R. disclosing these facts.  In pursuance of the information the Police  started  investigation, 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. Dismissing the appeal, HELD :-(1)That  the  decision of the Privy  Council  in Khwaza Nazir Ahmed’s case andthe  decision of  the  Supreme Court in S. N. Basak’s case have settled the law inregard to   the   High  Court’s  power  of  interference   at   the interlocutory  stage.  The statutory power of the police  to investigate  the cognizable offences cannot  be  interferred with in exercise of the inherent power of the Court u/s 561- A  of the Criminal Procedure Code.  In the present case,  no charge-sheet  or complaint had been filed in the  Court  and the  matter was .,till at the stage of investigation by  the Police. [796] (II)Held  further, that the first information report  prima facie  discloses, the commission of a cognizable offence  by the appellant and his companions.  Applying the decision  of the  Court  in R. P. Kapur’s case held, the High  Court  was right in not interfering with the police investigation.  The interference  is  justified  only if  the  F.I.R.  does  not disclose any offence.  In exercise of its jurisdiction  u/s. 561-A,  the High Court cannot embark upon an enquiry  as  to whether evidence in a given case is reliable or not. [798 A-

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797 D] King  Emperor  v.  Khwaja  Nazir  Ahmed,  71  I.A.  at  213, followed. State  of  West Bengal v, S. N. Basak [1963]  2  S.C.R.  54, applied. R. P. Kapur v. State of Punjab, [1960] 3 S.C.R. 388,  relied on.

JUDGMENT: 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. Anand, for the Appellant. S. N. Prasad and R. N. Sachthey for Respondent No. 1. The Judgment of the Court was delivered by SARKARIA,  J.-This  appeal  by  special  leave  is  directed against an order of a learned single Judge of the Delhi High Court,  dismissing appellant’s petition made under s.  561-A of  the Code of Criminal Procedure.  The material facts  are these : 795 On  June  15, 1969, a report was lodged in  Police  Station, Tilak  Mark, New Delhi, by one Munshi Ram alleging  that  he was  employed  as a Driver of bus, DLP  3867,  belonging  to Indraj Singh and Sukh 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 Conductor  and Sher Singh helper, to soft-drinks at a nearby shop.  Leaving 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 employed 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 possession of the Company. Pathak and the appellant filed two separate petitions  under s.   561A,  Cr.   Procedure  Code  challenging  the   police proceedings  in  pursuance of the First  Information  Report made by Munshi Ram. The  learned  Judge by a common  judgment  allowed  Pathak’s petition’s  and  quashed the proceedings  against  him,  but dismissed the appEllants petition with this observation :               "If Jehan Singh had transferred all his rights               in the bus, though against the stipulations in               the  hire-purchase  agreement, it would  be  a               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

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are  told  that at the date of the filing of  the  petitions under  S.  561-A, Cr.  Procedure Code,  no  charge-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 the petitions under s. 561-A to quash the proceedings which were being conducted in the course of policy investigation,  were not  competent.  He has referred to King Emperor  v.  Khwaja Nazir Ahmad(l) and State of West Bengal v. S. N. Basak  (2). It is maintained that in these circumstances, 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 (1) 71 I.A. 203 at 213. (2) [1963] 2 S.C.R. 54. 796 by Shri Prasad.  Reliance has been placed on R. P. Kapur  v. State of Punjab(1). 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 are complementary, not overlapping" and that the "court’s. functions begin when a  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 a First in-formation 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 with s. 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.   Subsequently,  he  moved the  High  Court  by  a petition  under  ss. 439 and 561-A of the Code  of  Criminal Procedure  praying that the proceedings pending against  him be quashed.  At the time he filed the petition there 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 of 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 a 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  are contained in Chapter XIV of  the               Code of Criminal Procedure.  Section 154 which               is  in that Chapter deals with information  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 a Magistrate and this statutory

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             power  of the police to investigate cannot  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  Procedure               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 (1) [1960] 3 S.C.R. 388 797 police  investigation.  Prima facie, therefore, the rule  in Basak’s case would be attracted. In  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  proceedings.  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  a               matter  merely of looking at the complaint  or               the First Informating Report to decide whether               the  offence 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  criminal               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 proceedings 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. A  plain reading of the First Information Report would  show that  the answer to this question must be in  the  negative. It  is alleged therein that the bus (DLP-3867)  belonged  to Indraj  and Sukhlal of Chirag Delhi and was at the  material time in their possession through their servants, 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 Singh and R. K. Pathak, who all entered  into  the vehicle which was then driven by  one  of them,   who  was  of  strong  build,  medium  height,   dark complexion   etc.  to  Scindia  House.   In  substance   the allegation was that the wrongful removal of the bus was  the concerted  action  of the appellant Jehan Singh  and  R.  K. Pathak  and  their un-named companions.   Prima  facie,  the

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allegations  in  the First Information Report, if  taken  as correct, did disclose the commission of a cognizable offence by  the appellant and his companions.  May be, that  further evidence  to  be collected by the police in  the  course  of investigation   including   the   hire-purchase   agreement, partnership  deed  and  the receipt etc.  would  confirm  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 798 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 a cancellation report.  If, however,  a 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 cognizance  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. S.B.W.                       Appeal dismissed. 799