SANJAY KUMAR Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THE present petition was filed before the Division Bench of this Court under Article 226 of the Constitution of India. Thereafter, the Division Bench of this Court passed the following order : "Let this writ petition be converted into a petition under Section 482 Cr.P.C.".

(2.) BRIEF facts for the disposal of this petition are that a complaint was filed before the court of Chief Judicial Magistrate u/s 156(3) Cr.P.C. Thereafter the Magistrate directed S.H.O. Kotwali, Dehradun to register the complaint and investigate the matter. In pursuance of the said order, a F.I.R. was lodged which is annexure -9 to the petition. The petition was converted under Section 482 Cr.P.C. and thereafter it was listed before me for hearing.

(3.) AT the first instance, it is to be examined whether the High Court can exercise its inherent power under Section 482 Cr.P.C. when the matter is under investigation. In the instant case, application was filed for seeking indulgence of the Magistrate to send the matter to the police for registration and investigation. The Magistrate directed to lodge the F.I.R. and investigate the matter. No charge sheet has been filed in this matter. The matter is under investigation. The applicants had remedy to file petition under Article 226 of the Constitution of India. The Court while exercising its jurisdiction u/s 482 Cr.P.C. cannot grant the relief of staying the arrest or to stop the investigation. This point was considered by the Privy Council in Emperor V. Khwaja Nazir Ahmad, AIR 1945 PC 18. It will be useful to render the relevant part made by the Judicial Committee of the Privy Council which has been considered in a number of decisions/Privy Council and the Apex Court of this country. The observations are as follows : "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 under section 401, Criminal P.C. to give directions in the nature of habeas corpus. In such a case 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 section 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 possess 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 as investigation."