NIRAJ GARG Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition filed under Articles 226 and 227 of the Constitution, read with Section 482 Cr. P. C. for quasning of the First Information Report (in short FIR) No. 89/87 registered at Police Station Modak.

(2.) M/s. Mangalam Cement Ltd. respondent No. 3 carries on business of manufacturing and sale of cement at Modak in Distt. Kota. The petitioner was appointed as handling and clearing agent of respondent No. 3 and he carries on business at Ghaziabad in the State of U. P. On 16tb November, 1987 a complaint was submitted on behalf of respondent No. 3 before the Munsiff and Judicial Magistrate Ramganj Mandi, wherein it has been alleged that the petitioner has misappropriated a sum of Rs. 3,75,000/-received by him on behalf of respondent No. 3 and has thereby committed offences punishable under Sections 408 and 420 I. P. C. On the said complaint the Judicial Magistrate passed an order under section 156 (3) Cr. P. C. directing the S. H. O. Police Station Modak. to register a case and submit the report after necessary investigation. On the basis of the said direction an FIR No. 89/87 in respect of offences under Sections 408 and 420 LP C. was registered at Police Station Modak on 22nd November, 1987 and the investigation was commenced by the Police. Feeling aggrieved by the aforesaid registration of the FIR and the investigation into the same by the police, the petitioner has filed this writ petition wherein he has prayed that an appropriate writ, order or direction may be issued quashing the said F. I. R. directing the S. H. O. /i. O. Police Station, Modak not to take any further steps in respect of the said F. I. R.

(3.) IN S. N. Sharma vs. Bipen Kumar Tiwari (3) the Magistrate had passed an order under sub-section (3) of Section 156 Cr. P. C. to stop investigation in a case by the police. The said order of the Magistrate was set aside by the High Court and the said order of the High Court was affirmed by the Supreme Court. The Supreme Court laid down that under sub-sec. (3) of Section 156 of the Code of Criminal Procedure, 1898,the only power given to the Magistrate who can take cognizance of an offence under Section 190 is to order an investigation and there is no mention of any power to stop any investigation by the police. After examining the provisions contained in Sections 156, 157 and 159' of the Code of Criminal Procedure, 1898 the Supreme Court held that the scheme of the said sections 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 than the Magistrate can intervene and either direct an investigation or, in the alternative, himself proceed or depute a Magistrate sub-ordiinate to him to proceed or to inquire into the case and that the power of the police to investigate has been made independent of any control by the Magistrate. The Supreme Court after referring to the observations of the Privy Council in Emperor Vs. Khwaja Nazir Ahmed (supra) has held that the interpretation placed by the Privy Council supports the view that the scheme of Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. IN the said case, it is, however, been observed : "it appears to us that, though the Code of Criminal Procedure gives to the police infettered 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 malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. "