SHAMBHU DAYAL AGRAWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ONE Shri Nandlal Sevaramani as Manager, Planning and Sales, of M/s. R. G. Ispat Ltd. Jaipur lodged a written report with the Superintendent of Police Jaipur, City Jaipur against M/s. Appolo Freight Carriers C-2 alleging therein that on 12. 7. 1991 certain items of Alloy Castings and Joy Plates (10 Metric Tonnes worth Rs. 1,80,000/- (Rs. ONE Lac, Eighty Thousand only) were given to M/s. Appolo Freight Carriers for being given at some place in Calcutta. These items were received by Driver-Madan Singh of Appolo who appended his signatures on the Challan No. 128 dated 12. 7. 1991. It is alleged that these items were not delivered to M/s. Raja Engineering Company and were retained by M/s. Appolo Freight Carriers. It was a detailed F. I. R. and on the basis of this F. I. R. dated 2. 4. 1992 a case u/s. 407 I. P. C. was disclosed and registered and thereafter police started investigation.

(2.) ON 24. 9. 1992 a bail application that is S. B. Criminal Misc. Bail Application No. 4251/92 u/s. 438, Cr. P. C was filed by the present petitioner before this Court seeking an order of anticipatory bail with regard to the offence u/s. 407, I. P. C. in relation to F. I. R. No. 214/92 of Police Station Vishwakarma, Jaipur. When the matter came before the Court on 25. 9. 1992 on behalf of the petitioner, Mr. Subhash Agrawal appeared, the learned Additional Public Prosecutor was not present and the Court directed the petitioner to appear before the Investigation Officer on 3. 10. 1992 with the mention that any information which the petitioner may disclose will be treated as an information u/s. 27 of the Indian Evidence Act and the Investigation Officer may send his report to the Additional Public Prosecutor along with the case diary within a week thereafter and the matter was directed to be listed for orders on 13. 10. 1992 and it was further ordered that in the meanwhile the petitioner shall not be arrested. ON 15. 10. 1992 the counsel for the petitioner and the complainant agreed before the Court that an attempt be made for compromise between the parties after calling them in the Court and accused and complainant were directed to be present before the Court on 30. 10. 1992 and the bail application was directed to be listed on 30. 10. 1992 and the interim-order was continued. ON 30. 10. 1992 the matter was list before this Bench and a prayer was made that this matter may be listed on 3. 11. 1992 before the bench which had passed the earlier orders and accordingly it was ordered that the matter may be listed before Hon'ble N. L. Tibrewal J. as prayed on 3. 11. 1992 and in the meanwhile the interim-order was continued. ON 10. 12. 1992 it was again ordered that the matter may be listed before Hon'ble N. L. Tibrewal J. as already ordered earlier on 30. 10. 1992 and the interim-order was again continued and the matter was posted for 18. 12. 1992. ON 11. 1. 1992 Hon'ble N. L. Tibrewal J. ordered that he was not having the roster of bail applications and, therefore, the matter may be listed before the regular bench and the interim-order was continued till the next date. Thereafter the matter came up before this regular bench hearing bail applications u/s. 438, Cr. P. C. on 25. 1. 1993 and Mr. B. L. Sharma, Advocate who appeared as counsel for the petitioner made a statement under instructions of his client who was also present and gave an undertaking to return the entire goods of the complainant M/s. R. G. Ispat within a period of 2 weeks and that it should be left open for him to realize the godown charges from the complainant by filing a regular suit. It was also submitted that the complainant may approach Mr. Shambhu Dayal Agrawal that is the present petitioner or his father for the return of the goods on 7. 2. 1993 and the bail application was posted for 9. 2. 1993 and the interim-order was continued.

(3.) SO far as AIR 1989 SC p. 2222 & AIR 1988 SC p. 709 (supra) are concerned these are the cases dealing with the petitions filed u/s. 482, Cr. P. C. However, in State of West Bengal and others Vs. Swapan Kumar Guha and others (supra) relied upon by Mr. Arvind Kumar Gupta, I find that it was a case arising from a writ petition filed in the High Court under Article 226 of the Constitution of India and the Supreme Court has held that where the FIR does not disclose the commission of any cognizable offence the High Court is justified in quashing the investigation. The relevant observations from the aforesaid Supreme Court's decision in State of West Bengal Vs. Swapan Kumar Guha (supra) are reproduced as under: - "21. 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 S. 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 un-fettered discretion to commence investigation under S. 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 F. I. R. , 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 of the police to investigate into cognizable offences. On the other hand, if the F. I. R. 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. 54. 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, 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. 65. 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 F. I. R. 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 un-necessary harassment to an individual. "