M.C. Abraham And Another, A.K. … vs State Of Maharashtra And Others on 20 December, 2002

Supreme Court of India
M.C. Abraham And Another, A.K. … vs State Of Maharashtra And Others on 20 December, 2002
Author: B Singh
Bench: N. Santosh Hegde, B.P. Singh.
           CASE NO.:
Appeal (crl.)  1346-1347 of 2002
Appeal (crl.)  1348-1349 of 2002
Appeal (crl.)  1350-1351 of 2002
Appeal (crl.)  1352 of 2002
Special Leave Petition (crl.)  231-232 of 2002
Special Leave Petition (crl.)  301-302 of 2002
Special Leave Petition (crl.)  310-311 of 2002
Special Leave Petition (crl.)  868 of 2002

PETITIONER:
M.C. Abraham and another, A.K. Dhote, J.F. Salve and another

RESPONDENT:
State of Maharashtra and others

DATE OF JUDGMENT: 20/12/2002

BENCH:
N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT:

J U D G M E N T

B.P. SINGH, J.

Special leave granted in all matters.

These appeals arise out of three orders passed by the High
Court of Bombay, Nagpur Bench, Nagpur in Writ Petition (Crl.)
No. 380/2001, a writ petition filed in public interest, dated 10th,
11th and 16th January, 2002. The aforesaid writ petition has been
filed by the Maharashtra Antibiotics & Pharmaceuticals
Employees Association and others in which a grievance has been
made that though the Provident Fund Commissioner has lodged a
complaint against several Directors of the Maharashtra Antibiotics
& Pharmaceuticals Ltd. (hereinafter referred to as ‘MAPL’), the
investigation has made no progress on account of the fact that the
Directors are government servants and enjoy considerable
influence. In the aforesaid writ petition the impugned orders have
been passed on different dates which are the subject matter of
challenge before this Court. Criminal Appeals arising out of S.L.P.
(Crl.) Nos.301-302 of 2002; Criminal Appeals arising out of
S.L.P. (Crl.) Nos.310-311 of 2002 and Criminal Appeals arising
S.L.P. (Crl.) Nos.231-232 of 2002 are directed against the orders
of the Court dated 10th January, 2002 and 11th January, 2002. Shri
A.K. Dhote, appellant in Criminal Appeals arising out of S.L.P.
(Crl.) Nos.301-302 of 2002 is the Managing Director of MAPL.
The appellants in Criminal Appeals arising out of S.L.P. (Crl.)
Nos.310-311 of 2002, Shri J.F. Salve and Sh. Vijay Khardekar are
the Directors on the Board of MAPL nominated by the State
Industrial and Investment Corporation of Maharashtra Ltd.
(hereinafter referred to as the SICOM). Similarly the appellants in
Criminal Appeals arising out of S.L.P. (Crl.) Nos.231-232 of 2002,
Sh. M.C Ambraham and Sh. J.K. Dattagupta are part time
Directors of MAPL having been appointed as part time Directors
on the Board of Management by the President of India.

Criminal Appeal arising out of SLP (Crl.) No.868 of 2002
is directed against the order of the High Court dated 16th January,
2002 and the appellants therein are Shri J.F. Salve and Sh. Vijay
Khardekar, who are nominees of SICOM on the Board of MAPL.

MAPL is a joint venture of the Government of India and the
State of Maharashtra and it is not in dispute that it has been
declared to be a sick industry by the Board for Industrial and
Financial Reconstruction (hereinafter referred to as the BIFR) on
14th January, 1997. It appears that a complaint has been lodged by
the Provident Fund Commissioner against the Directors of MAPL
alleging offences under sections 406 and 409/34 IPC.

It appears that some of the accused persons had moved the
High Court for grant of anticipatory bail under section 438 of the
Code of Criminal Procedure being Criminal Application Nos. 940,
975 and 976 of 2001. Those petitions were rejected by the High
Court by its order dated 7th September, 2001. The orders rejecting
those petitions have not been appealed against.

On 10th January, 2002 the High Court passed the first
impugned order observing that it was shocking that the writ
petitioners had to approach the High Court seeking directions
against the State to act on the complaint lodged by the Provident
Commissioner against the Directors of MAPL. Despite the fact
that their applications for grant of anticipatory bail had been
rejected by the High Court, by a reasoned order, they had not been
arrested. The High Court, therefore, felt that in the circumstances,
the only course open to the respondent-State was to cause their
arrest and prosecute them. The High Court thereafter passed the
following order :-

“We therefore, direct the respondent-State
to cause arrest of those accused and produce them
before the Court on or before 14.1.2002. On their
failure to do so we will be constrained to summon
the Commissioner of Police, Nagpur, Pune and
Mumbai to appear before this Court in person and
explain that as to why they are not able to cause
arrest of these persons.

Merely because accused are government
servants/officials they do not enjoy any immunity
from arrest if they have committed an offence. It
is expected of the State to be diligent in
prosecuting such offenders without discrimination.

The order be communicated to the Principal
Secretary, Home Department, Government of
Maharashtra and also to the Commissioner of
Police of three cities who will be solely
responsible for failure to comply with the orders of
this Court. Learned A.P.P. is directed to
communicate the orders by Fax, Wireless message
in addition to other mode of service and even
inform them on telephone S.O. 16.1.2002.

Authenticated copy be furnished to A.P.P.”.

This is the first order challenged by the appellants before us.

It appears that on the next date i.e. 11th January, 2002 an
application filed on behalf of respondents 1 & 2 in the writ petition
for modification of the order dated 10th January, 2002 came up for
hearing before the Court in which certain additional facts were
sought to be brought to the notice of the Court, namely – that the
complainant himself had written to the investigating officer by his
letter dated 1st August, 2001 that Shri M.C. Abraham, Chairman of
MAPL and part time Director Shri J.K. Dattagupta were appointed
by the Government of India and as such they were not concerned
with day to day working of the establishment and therefore the
complaint should be restricted to other accused persons excluding
these two. The High Court was surprised as to how such a letter
could be issued to the investigating officer, because the question as
to whether they were concerned with day to day affairs of the
company was a matter which had to be considered by the Court
taking cognizance of the offence. Some other submissions were
also urged on the basis of Section 41-A of the State Financial
Corporation Act but the same were also rejected. Lastly, it was
urged before the High Court that the investigating officer had taken
an opinion from the Assistant Director and Public Prosecutor,
Nagpur who was of the view that the matter deserved to be treated
as ‘C’ summary as no funds have been found to be
misappropriated. The High Court observed that this could not be
the reason for not proceeding further in the matter particularly in
view of the observations made by the Court in the order dated 7th
September, 2001 rejecting the applications for grant of anticipatory
bail. The application for modification was accordingly dismissed.

The third order was passed on 16th January, 2002. It appears
that the order directing arrest of the appellants herein was appealed
against before this Court and this Court by order dated 14th
January, 2002 passed an interim order staying the directions of the
High Court to arrest the appellants. The High Court noticed the
order passed by this Court. It directed the respondent/State to take
necessary steps in the matter subject to interim order passed by the
Supreme Court. In this connection it was observed :-

“Our anxiety is to see that the State
expeditiously conclude the investigation in the
case and file Chargesheet. We may again remind
the State of the order passed by this Court while
rejecting the pre-arrest bail application on 7.9.2001
and should not show any laxity in the
investigation”.

Counsel for the appellants submitted before us that the
orders dated 10th January, 2002 and 11th January, 2002 result in
unjustified interference with the investigation of the case, and
having regard to the well defined para-meters of judicial
interference in such matters, the directions made by the High Court
deserve to be quashed. He submitted that the High Court in
exercise of its writ jurisdiction, cannot direct the investigating
officer or the State to arrest the accused in a case which is still at
the stage of investigation, nor can it direct the investigating
agency to submit a report before the Magistrate as directed by the
High Court. We find considerable force in the submission urged
on behalf of the appellants. The observations of the Supreme
Court in State of Bihar and another Vs. J.A.C. Saldanha and
others : (1980) 1 SCC 554 in this regard deserve notice. In that
case, on the basis of the first information report, the case was
investigated and a final report was submitted exonerating the
accused. The matter had engaged the attention of the Government
and even while the matter was under consideration of the
Government, the final report was submitted. The investigating
officer who had taken over from the earlier investigating officer
moved the Court with a prayer that the final report already filed,
may not be acted upon and that the report of the police, after
completion of further investigation, which had been directed by
the government in the case, be awaited. The Chief Judicial
magistrate passed an order whereby he decided to await the report
of further investigation. This order was challenged before the
High Court and a Full Bench of the High Court allowed the writ
petition and gave various directions to the learned Additional Chief
Judicial Magistrate how to dispose of the case. It further held
that the Additional Chief Judicial Magistrate was in error in
postponing the consideration of the final report already submitted.

The contention before this Court was that the High Court
was in error in exercising jurisdiction under Article 226 of the
Constitution at the stage when the Additional Chief Judicial
Magistrate who had jurisdiction to entertain and try the case, had
not passed upon the issues before him, by taking upon itself the
appreciation of evidence involving facts about which there was an
acrimonious dispute between the parties and giving a clean bill to
the suspects against whom the first information report was filed.
In this connection this court relied upon the observations of the
Privy Council in King Emperor Vs. Khwaja Nazir Ahmad : 1944
LR 71 IA 203, which reads thus:-

“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 491 of the
Criminal Procedure Code to give directions in the
nature of habeas corpus. In such a case as the
present, however, the Court’s functions begin
when a charge is preferred before it, and not until
then”.

Reference was also made to the observations of this Court in
S.M. Sharma Vs. Bipen Kumar Tiwari : (1970) 3 SCR 946,
wherein this Court observed:

“It appears to us that, though the Code of
Criminal Procedure gives to the police unfettered
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 Article 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 mala fide, the High Court can always
issue a writ of mandamus restraining the police
officer from misusing his legal power”.

This Court held in the case of J.A.C. Saldanha (supra) that
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 by the executive through
the police department, the superintendence over which vests in the
State Government. It is the bounden duty of the executive to
investigate, if an offence is alleged, 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. Once that is completed and the investigating officer
submits report to the Court requesting the Court to take
congnizance of the offence under section 190 of the Code of
Criminal Procedure, its duty comes to an end. On a cognizance of
the offence being taken by the Court, the police function of
investigation comes to an end subject to the provision contained in
Section 173(8), then commences the adjudicatory function of the
judiciary to determine whether an offence has been committed and
if so, whether by the person or persons charged with the crime. In
the circumstances, the judgment and order of the High Court was
set aside by this Court.

Tested in the light of the principles aforesaid, the impugned
orders dated 10th January, 2002 and 11th January, 2002 must be
held to be orders passed by over-stepping the para-meters of
judicial interference in such matters. In the first place, arrest of an
accused is a part of the investigation and is within the discretion of
the investigating officer. Section 41 of the Code of Criminal
Procedure provides for arrest by a police officer without an order
from a Magistrate and without a warrant. The section gives
discretion to the police officer who may, without an order from a
Magistrate and even without a warrant, arrest any person in the
situations enumerated in that section. It is open to him, in the
course of investigation, to arrest any person who has been
concerned with any cognizable offence or against whom
reasonable complaint has been made or credible information has
been received, or a reasonable suspicion exists of his having been
so concerned. Obviously, he is not expected to act in a mechanical
manner and in all cases to arrest the accused as soon as the report
is lodged. In appropriate cases, after some investigation, the
investigating officer may make up his mind as to whether it is
necessary to arrest the accused person. At that stage the Court has
no role to play. Since the power is discretionary, a police officer is
not always bound to arrest an accused even if the allegation against
him is of having committed a cognizable offence. Since an arrest
is in the nature of an encroachment on the liberty of the subject and
does affect the reputation and status of the citizen, the power has to
be cautiously exercised. It depends inter alia upon the nature of
the offence alleged and the type of persons who are accused of
having committed the cognizable offence. Obviously, the power
has to be exercised with caution and circumspection.

In the instant case the appellants had not been arrested. It
appears that the result of the investigation showed that no amount
had been defalcated. We are here not concerned with the
correctness of the conclusion that the investigating officer may
have reached. What is, however, significant is that the
investigating officer did not consider it necessary, having regard to
all the facts and circumstances of the case, to arrest the accused. In
such a case there was no justification for the High Court to direct
the State to arrest the appellants against whom the first information
report was lodged, as it amounted to unjustified interference in the
investigation of the case. The mere fact that the bail applications
of some of the appellants had been rejected is no ground for
directing their immediate arrest. In the very nature of things, a
person may move the Court on mere apprehension that he may be
arrested. The Court may or may not grant anticipatory bail
depending upon the facts and circumstances of the case and the
material placed before the Court. There may, however, be cases
where the application for grant of anticipatory bail may be rejected
and ultimately, after investigation, the said person may not be put
up for trial as no material is disclosed against him in the course of
investigation. The High Court proceeded on the assumption that
since petitions for anticipatory bail had been rejected, there was no
option open for the State but to arrest those persons. This
assumption, to our mind, is erroneous. A person whose petition for
grant of anticipatory bail has been rejected may or may not be
arrested by the investigating officer depending upon the facts and
circumstances of the case, nature of the offence, the background of
the accused, the facts disclosed in the course of investigation and
other relevant considerations.

We have, therefore, no doubt that the order dated 10th
January, 2002, in so far as it directs the arrest of the appellants,
must be set aside. So far as the order dated 11th January, 2002 is
concerned, it gives an impression that the High Court has held that
it was not open to the investigating officer, in view of the order
passed by the High Court dated 7th September, 2001 rejecting the
anticipatory bail petitions of some of the appellants, to treat the
case as ‘C’ summary as it has been found that no funds had been
misappropriated. By the impugned order dated 16th January, 2002
the High Court has in fact shown its anxiety to see that the “State
expeditiously conclude the investigation in the case and file
charge-sheet”. We are afraid, such a direction cannot be sustained
in view of the settled principle of law on the subject. It is not
necessary for us to multiply authorities but we may only refer to
Abhinandan Jha and others Vs. Dinesh Mishra : AIR 1968 SC
117, where this Court observed thus:-

“Then the question is, what is the position,
when the Magistrate is dealing with a report
submitted by the police, under Section 173, that no
case is made out for sending up an accused for
trial, which report, as we have already indicated, is
called, in the area in question, as a ‘final report’?
Even in those cases, if the Magistrate agrees with
the said report, he may accept the final report and
close the proceedings. But there may be instances
when the Magistrate may take the view, on a
consideration of the final report, that the opinion
formed by the police is not based on a full and
complete investigation, in which case, in our
opinion, the Magistrate will have ample
jurisdiction to give directions to the police, under
S. 156(3), to make a further investigation. That is,
if the Magistrate feels, after considering the final
report, that the investigation is unsatisfactory, or
incomplete, or that there is scope for further
investigation, it will be open to the Magistrate to
decline to accept the final report and direct the
police to make further investigation, under Section
156(3)
. The police, after such further
investigation, may submit a charge-sheet, or, again
submit a final report, depending upon the further
investigation made by them. If ultimately, the
Magistrate forms the opinion that the facts, set out
in the final report, constitute an offence, he can
take cognizance of the offence, under section
190(1)
(b), notwithstanding the contrary opinion of
the police, expressed in the final report.The
functions of the Magistracy and the police, are
entirely different, and though, in the circumstances
mentioned earlier, the Magistrate may or may not
accept the report, and take suitable action,
according to law, he cannot certainly infringe (sic
impinge?) upon the jurisdiction of the police, by
compelling them to change their opinion, so as to
accord with his view.

Therefore, to conclude, there is no power,
expressly or impliedly conferred, under the Code,
on a Magistrate to call upon the police to submit a
charge-sheet, when they have sent a report under
section 169 of the Code, that there is no case made
out for sending up an accused for trial”.

The principle, therefore, is well settled that it is for the
investigating agency to submit a report to the Magistrate after full
and complete investigation. The investigating agency may submit
a report finding the allegations substantiated. It is also open to the
investigating agency to submit a report finding no material to
support the allegations made in the first information report. It is
open to the Magistrate concerned to accept the report or to order
further enquiry. But what is clear is that the Magistrate cannot
direct the investigating agency to submit a report that is in accord
with his views. Even in a case where a report is submitted by the
investigating agency finding that no case is made out for
prosecution, it is open to the Magistrate to dis-agree with the report
and to take cognizance, but what he cannot do is to direct the
investigating agency to submit a report to the effect that the
allegations have been supported by the material collected during
the course of investigation.

In the instant case the investigation is in progress. It is not
necessary for us to comment on the tentative view of the
investigating agency. It is the statutory duty of the investigating
agency to fully investigate the matter and then submit a report to
the concerned Magistrate. The Magistrate will thereafter proceed
to pass appropriate order in accordance with law. It was not
appropriate for the High Court in these circumstances to issue a
direction that the case should not only be investigated, but a charge
sheet must be submitted. In our view the High Court exceeded its
jurisdiction in making this direction which deserves to be set aside.
While it is open to the High Court, in appropriate cases, to give
directions for prompt investigation etc., the High Court cannot
direct the investigating agency to submit a report that is in accord
with its views as that would amount to unwarranted interference
with the investigation of the case by inhibiting the exercise of
statutory power by the investigating agency.

In these circumstances, therefore, we set aside the direction
contained in the order of the High Court dated 10th January, 2002
directing the arrest of the appellants. We also set aside the
direction made by the High Court directing the investigating
agency to submit a charge-sheet. However, the investigating
agency must promptly take all necessary steps, conclude the
investigation and submit its report to the concerned Magistrate. It
is open to the investigating agency to submit such report as it
considers appropriate, having regard to the facts and circumstances
of the case and result of the investigation. After such a final report
is submitted by the investigating agency, the concerned Magistrate
will proceed to deal with the matter further in accordance with law
without being influenced by any observation made by the High
Court in the impugned orders.

The appeals are allowed in the above terms.

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