IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1120   OF 2008 (Arising out of S.L.P. (Crl.) No.25/2008)

    Atif Iqbal Mansuri & Ors.   ...Appellants

Versus

    State of Mahrashtra & Anr. ...Respondents

O  R  D  E  R

Leave granted.

This appeal is directed against the judgment and order dated

18.12.2007 passed by a Division Bench of the High Court of Bombay in Crl.  Writ

Petition  No.  1961/2007  whereby  and  whereunder  the  writ  petition  filed  by  the

appellants  claiming, inter alia, the following reliefs:

" a) pass an order, direction or a Writ in the nature of Certiorari calling upon the records and proceedings of C.R.No.224 of 2007 registered by the Agripada Police Station.

 b) pass an order, direction and writ in the nature of Certiorari to quash and  set  aside  the  proceedings  under  the  C.R.  No.224  of  2007  registered  by  the Agripada Police Station.

1.   c) to issue direction or an order to stay all the proceedings in C.R.No.224 of  2007  registered  by  the  Agripada  Police  Station  till  the  final  disposal  of  the present petition;

was dismissed, stating :

" The learned APP makes a statement on the basis of instructions from the investigating Officer that the investigation of the crime is completed and he states that charge sheet will  be filed within one week. Therefore, after filing the charge sheet, appropriate  reliefs  of  discharge  etc.  are open to  the  petitioners.  At  this  stage,  we refrain  ourselves  from  entertaining  the  writ  petition  seeking  quashing  of  FIR."

-1-

Mr.  Uday  Umesh  Lalit,  learned  senior  counsel  appearing  on

behalf of the appellants took us through the records of the dispute to submit that the

High Court committed a serious error of law in passing the impugned judgment in so

far as it failed to take into consideration the fact that the First Information Report

was lodged by the second respondent herein mala fide and as a counter blast to the

application for visitation rights granted in favour of  appellant No.1 by interim orders

dated 25.7.2007 and  4.9.2007 in  a contempt  petition filed  by  the appellant  herein

being  Contempt Petition No. 293/2007 for non-compliance of  orders dated 25.7.2007

and  7/8/2007 passed in writ petition No. 5703/2007.

It was, furthermore, contended that even otherwise the second

respondent had made  false and frivolous allegations which would be evident from the

various documents filed before the High Court.

Mr.R.K.  Adsure,  learned counsel  appearing  on  behalf  of  the

State, when asked, very fairly stated that the charge sheet has not yet been filed.

Mr.Sunil Kumar, learned senior counsel appearing on behalf of

the complainant-respondent,however, would submit that investigation pursuant to the

First Information Report had been made and is almost complete and as such this

Court  should  not  exercise  its  discretionary  jurisdiction  under  Article  136  of  the

Constitution  of  India,  particularly,  when  in  the  event  a  charge  sheet  is  filed  and

cognizance of the offence is taken, the appellant, in terms of the liberty granted by the

High Court, would be entitled to raise all contentions at the time of framing of charge.

As at present advised, we are not inclined to consider the merit

of  the  matter.  There  cannot  be  any  doubt,  whatsoever,  that  a  person  accused  of

commission of a  

-2-

cognizable offence is entitled to move the High Court in its writ jurisdiction with a

prayer for quashing of the investigation undertaken in terms of a First Information

Report and/or quashing the same.

It is one thing to say that the High Court would not ordinarily

entertain such an application but it is another thing to say that the High Court has no

jurisdiction in this respect at all.

The High Court in its  impugned judgment,  with  respect,  has

adopted  a  wrong  approach.  It  is  now  evident  that  the  investigation  by  the

investigating  officer  is  not  yet  complete.  Investigation  in  the  matter  might  have

proceeded to a great extent but the same by itself may not be a ground for refusing to

entertain a writ petition  only because the accused will have another opportunity at

the stage of framing of charge.

In Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. &

Ors. - JT 2008(1) SC340, this Court has  held that in the event the First Information

Report even if given face value and taken to be correct in its entirety does not disclose

an offence  a writ  petition would  be  maintainable.  However,  having regard to the

allegations made therein it was held that the investigation could proceed in respect of

an  offence under Section 406 thereof. We have referred to this decision only for the

purpose of showing that there are cases where the High Court and this Court had

interfered even at that stage.

We, therefore, are of the opinion that the impugned judgment cannot be

sustained. It is set aside accordingly. The High Court is requested to  consider the

matter on merit afresh. We would request the High Court to consider the desirability

of disposing of the matter as expeditiously as possible.

-3-

It is  stated before us that the High Court had not stayed the

investigation. Investigation, therefore, may continue.  

There cannot be any doubt that all  contentions of the parties

shall remain open.

The appeal is allowed with the aforementioned observations.

......................J.       [S.B. SINHA]

......................J.       [CYRIAC JOSEPH]

New Delhi, July 16, 2008.

-4-