{"id":267850,"date":"2002-12-20T00:00:00","date_gmt":"2002-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-c-abraham-and-another-a-k-vs-state-of-maharashtra-and-others-on-20-december-2002-3"},"modified":"2016-12-14T03:35:41","modified_gmt":"2016-12-13T22:05:41","slug":"m-c-abraham-and-another-a-k-vs-state-of-maharashtra-and-others-on-20-december-2002-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-c-abraham-and-another-a-k-vs-state-of-maharashtra-and-others-on-20-december-2002-3","title":{"rendered":"M.C. Abraham And Another, A.K. … vs State Of Maharashtra And Others on 20 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M.C. Abraham And Another, A.K. … vs State Of Maharashtra And Others on 20 December, 2002<\/div>\n
Author: B Singh<\/div>\n
Bench: N. Santosh Hegde, B.P. Singh.<\/div>\n
           CASE NO.:\nAppeal (crl.)  1346-1347 of 2002\nAppeal (crl.)  1348-1349 of 2002\nAppeal (crl.)  1350-1351 of 2002\nAppeal (crl.)  1352 of 2002\nSpecial Leave Petition (crl.)  231-232 of 2002\nSpecial Leave Petition (crl.)  301-302 of 2002\nSpecial Leave Petition (crl.)  310-311 of 2002\nSpecial Leave Petition (crl.)  868 of 2002\n\nPETITIONER:\nM.C. Abraham and another, A.K. Dhote, J.F. Salve and another\n\nRESPONDENT:\nState of Maharashtra and others\n\nDATE OF JUDGMENT: 20\/12\/2002\n\nBENCH:\nN. SANTOSH HEGDE & B.P. SINGH.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
B.P. SINGH, J.\n<\/p>\n
\tSpecial leave granted in all matters.\n<\/p>\n
\tThese appeals arise out of three orders passed by the High
\nCourt of Bombay, Nagpur Bench, Nagpur in Writ Petition (Crl.)
\nNo. 380\/2001, a writ petition filed in public interest, dated 10th,
\n11th and 16th January, 2002.  The aforesaid writ petition has been
\nfiled by the Maharashtra Antibiotics & Pharmaceuticals
\nEmployees Association and others in which a grievance has been
\nmade that though the Provident Fund Commissioner has lodged a
\ncomplaint against several Directors of the Maharashtra Antibiotics
\n& Pharmaceuticals Ltd. (hereinafter referred to as ‘MAPL’), the
\ninvestigation has made no progress on account of the fact that the
\nDirectors are government servants and enjoy considerable
\ninfluence.  In the aforesaid writ petition the impugned orders have
\nbeen passed on different dates which are the subject matter of
\nchallenge before this Court.  Criminal Appeals arising out of S.L.P.
\n(Crl.) Nos.301-302 of 2002;  Criminal Appeals arising out of
\nS.L.P. (Crl.) Nos.310-311 of 2002 and Criminal Appeals arising
\nS.L.P. (Crl.) Nos.231-232 of 2002 are directed against the orders
\nof the Court dated 10th January, 2002 and 11th January, 2002.  Shri
\nA.K. Dhote, appellant in  Criminal Appeals arising out of S.L.P.
\n(Crl.) Nos.301-302 of 2002 is the Managing Director of MAPL.
\nThe appellants in Criminal Appeals arising out of S.L.P. (Crl.)
\nNos.310-311 of 2002, Shri J.F. Salve and Sh. Vijay Khardekar are
\nthe Directors on the Board of MAPL nominated by the State
\nIndustrial and Investment Corporation of Maharashtra Ltd.
\n(hereinafter referred to as the SICOM).\t Similarly the appellants in
\nCriminal Appeals arising out of S.L.P. (Crl.) Nos.231-232 of 2002,
\nSh. M.C Ambraham and Sh. J.K. Dattagupta are part time
\nDirectors of MAPL having been appointed as part time Directors
\non the Board of Management by the President of India.\n<\/p>\n
  Criminal Appeal arising out of SLP (Crl.) No.868 of 2002
\nis directed against the order of the High Court dated 16th January,
\n2002 and the appellants therein are Shri J.F. Salve and Sh. Vijay
\nKhardekar, who are nominees of SICOM on the Board of MAPL.\n<\/p>\n
MAPL is a joint venture of the Government of India and the
\nState of Maharashtra and it is not in dispute that it has been
\ndeclared to be a sick industry by the Board for Industrial and
\nFinancial Reconstruction (hereinafter referred to as the BIFR) on
\n14th January, 1997.  It appears that a complaint has been lodged by
\nthe Provident Fund Commissioner against the Directors of MAPL
\nalleging offences under sections 406<\/a> and 409<\/a>\/34<\/a> IPC.\n<\/p>\n
\tIt appears that some of the accused persons had moved the
\nHigh Court for grant of anticipatory bail under section 438<\/a> of the
\nCode of Criminal Procedure being Criminal Application Nos. 940,
\n975 and 976 of 2001.  Those petitions were rejected by the High
\nCourt by its order dated 7th September, 2001.  The orders rejecting
\nthose petitions have not been appealed against.\n<\/p>\n
\tOn 10th January, 2002 the High Court passed the first
\nimpugned order observing that it was shocking that the writ
\npetitioners had to approach the High Court seeking directions
\nagainst the State to act on the complaint lodged by the Provident
\nCommissioner against the Directors of MAPL.  Despite the fact
\nthat their applications for grant of anticipatory bail had been
\nrejected by the High Court, by a reasoned order, they had not been
\narrested.  The High Court, therefore, felt that in the circumstances,
\nthe only course open to the respondent-State was to cause their
\narrest and prosecute them.  The High Court thereafter passed the
\nfollowing order :-\n<\/p>\n
“We  therefore, direct the respondent-State
\nto cause arrest of those accused and produce them
\nbefore the Court on or before 14.1.2002.  On their
\nfailure to do so we will be constrained to summon
\nthe Commissioner of Police, Nagpur, Pune and
\nMumbai to appear before this Court in person and
\nexplain that as to why they are not able to cause
\narrest of these persons.\n<\/p>\n
Merely because accused are government
\nservants\/officials they do not enjoy any immunity
\nfrom arrest if they have committed an offence.\tIt
\nis expected of the State to be diligent in
\nprosecuting such offenders without discrimination.\n<\/p>\n
The order be communicated to the Principal
\nSecretary, Home Department, Government of
\nMaharashtra and also to the Commissioner of
\nPolice of three cities who will be solely
\nresponsible for failure to comply with the orders of
\nthis Court.  Learned A.P.P. is directed to
\ncommunicate the orders by Fax, Wireless message
\nin addition to other mode of service and even
\ninform them on telephone S.O. 16.1.2002.\n<\/p>\n
Authenticated copy be furnished to A.P.P.”.\n<\/p>\n
This is the first order challenged by the appellants before us.\n<\/p>\n
\tIt appears that on the next date i.e. 11th January, 2002 an
\napplication filed on behalf of respondents 1 & 2 in the writ petition
\nfor modification of the order dated 10th January, 2002 came up for
\nhearing before the Court in which certain additional facts were
\nsought to be brought to the notice of the Court, namely –  that the
\ncomplainant himself had written to the investigating officer by his
\nletter dated 1st August, 2001 that Shri M.C. Abraham, Chairman of
\nMAPL and part time Director Shri J.K. Dattagupta were appointed
\nby the Government of India and as such they were not concerned
\nwith day to day working of the establishment and therefore the
\ncomplaint should be restricted to other accused persons excluding
\nthese two.  The High Court was surprised as to how such a letter
\ncould be issued to the investigating officer, because the question as
\nto whether they were concerned with day to day affairs of the
\ncompany was a matter which had to be considered by the Court
\ntaking cognizance of the offence.  Some other submissions were
\nalso urged on the basis of Section 41-A<\/a> of the State Financial
\nCorporation Act but the same were also rejected.  Lastly, it was
\nurged before the High Court that the investigating officer had taken
\nan opinion from the Assistant Director and Public Prosecutor,
\nNagpur who was of the view that the matter deserved to be treated
\nas ‘C’ summary as no funds have been found to be
\nmisappropriated.  The High Court observed that this could not be
\nthe reason for not proceeding further in the matter particularly in
\nview of the observations made by the Court in the order dated 7th
\nSeptember, 2001 rejecting the applications for grant of anticipatory
\nbail.  The application for modification was accordingly dismissed.\n<\/p>\n
\tThe third order was passed on 16th January, 2002.  It appears
\nthat the order directing arrest of the appellants herein was appealed
\nagainst before this Court and this Court by order dated 14th
\nJanuary, 2002 passed an interim order staying the directions of the
\nHigh Court to arrest the appellants.  The High Court noticed the
\norder passed by this Court.  It directed the respondent\/State to take
\nnecessary steps in the matter subject to interim order passed by the
\nSupreme Court.\tIn this connection it was observed :-\n<\/p>\n
“Our anxiety is to see that the State
\nexpeditiously conclude the investigation in the
\ncase and file Chargesheet.  We may again remind
\nthe State of the order passed by this Court while
\nrejecting the pre-arrest bail application on 7.9.2001
\nand should not show any laxity in the
\ninvestigation”.\n<\/p>\n
\tCounsel for the appellants submitted before us that the
\norders dated 10th January, 2002 and 11th January, 2002\tresult in
\nunjustified interference with the investigation of the case, and
\nhaving regard to the well defined para-meters of judicial
\ninterference in such matters, the directions made by the High Court
\ndeserve to be quashed.\tHe submitted that the High Court in
\nexercise of its writ jurisdiction, cannot direct the investigating
\nofficer or the State to arrest the accused in a case which is still at
\nthe stage of investigation, nor can  it direct the investigating
\nagency to submit a report before the Magistrate as directed by the
\nHigh Court.  We find considerable force in the submission   urged
\non behalf of the appellants.  The observations of the Supreme
\nCourt in State of Bihar and another Vs. J.A.C. Saldanha and
\nothers : (1980) 1 SCC 554 in this regard deserve notice.  In that
\ncase, on the basis of the first information report, the case was
\ninvestigated and a final report was submitted exonerating the
\naccused.  The matter had engaged the attention of the Government
\nand even while\t the matter was under consideration of the
\nGovernment, the final report was submitted.  The investigating
\nofficer who had taken over from the earlier investigating officer
\nmoved the Court with a prayer that the final report already filed,
\nmay not be acted upon and that the report of the police, after
\ncompletion of further investigation, which had been  directed by
\nthe government in the case, be awaited.\t The Chief Judicial
\nmagistrate passed an order whereby  he decided to  await the report
\nof further investigation.  This order was challenged before the
\nHigh Court and a  Full Bench of the High Court allowed the writ
\npetition and gave various directions to the learned Additional Chief
\nJudicial Magistrate  how  to dispose of the case.  It further held
\nthat the Additional Chief Judicial Magistrate was in error in
\npostponing the consideration of the final report already submitted.\n<\/p>\n
\tThe contention before this Court was that the High Court
\nwas in error in exercising jurisdiction under Article 226<\/a> of the
\nConstitution at the stage when the Additional Chief Judicial
\nMagistrate who had jurisdiction to entertain and try the case, had
\nnot passed upon the issues before him, by taking upon itself the
\nappreciation of evidence involving facts about which there was an
\nacrimonious dispute between the parties and giving a clean bill to
\nthe suspects against whom the first information report was filed.
\nIn this connection this court relied upon the observations of the
\nPrivy Council in King Emperor  Vs.  Khwaja Nazir Ahmad : 1944
\nLR 71 IA 203, which reads thus:-\n<\/p>\n
“In India, as has been shown, there is a
\nstatutory right on the part of the police to
\ninvestigate the circumstances of an alleged
\ncognizable crime without requiring any authority
\nfrom the judicial authorities and it would, as their
\nLordships think, be an unfortunate result if it
\nshould be held possible to interfere with those
\nstatutory rights by an exercise of the inherent
\njurisdiction of the Court.  The functions of the
\njudiciary and the police are complementary, not
\noverlapping, and the combination of individual
\nliberty with a due observance of law and order is
\nonly to be obtained by leaving each to exercise its
\nown function, always, of course, subject to the
\nright of the Court to intervene in an appropriate
\ncase when moved under Section 491<\/a> of the
\nCriminal Procedure Code to give directions in the
\nnature of habeas corpus.  In such a case as the
\npresent, however, the Court’s functions begin
\nwhen a charge is preferred before it, and not until
\nthen”.\n<\/p>\n
\tReference was also made to the observations of this Court in
\nS.M. Sharma Vs. Bipen Kumar Tiwari : (1970) 3 SCR 946,
\nwherein this Court observed:\n<\/p>\n
“It appears to us that, though the Code<\/a> of
\nCriminal Procedure gives to the police unfettered
\npower to investigate all cases where they suspect
\nthat a cognizable offence has been committed, in
\nappropriate cases an aggrieved person can always
\nseek a remedy by invoking the power of the High
\nCourt under Article 226<\/a> of the Constitution under
\nwhich, if the High Court could be convinced that
\nthe power of investigation has been exercised by a
\npolice officer mala fide, the High Court can always
\nissue a writ of mandamus restraining the police
\nofficer from misusing his legal power”.\n<\/p>\n
\tThis Court held in the case of\tJ.A.C. Saldanha (supra) that
\nthere is a clear-cut and well demarcated sphere of activity in the
\nfield of crime detection and crime punishment.\t Investigation of an
\noffence is the field exclusively reserved by the executive through
\nthe police department, the superintendence over which vests in the
\nState Government.  It is the bounden duty of the executive to
\ninvestigate, if an offence is alleged, and bring the offender to book.
\nOnce it investigates and finds an offence having been committed, it
\nis its duty to collect evidence for the purpose of proving the
\noffence. Once that is completed and the investigating officer
\nsubmits report to the Court requesting the Court to take
\ncongnizance of the offence under section 190<\/a> of the Code of
\nCriminal Procedure, its duty comes to an end.  On a cognizance of
\nthe offence being taken by the Court, the police function of
\ninvestigation comes to an end subject to the provision contained in
\nSection 173(8)<\/a>, then commences the adjudicatory function of the
\njudiciary to determine whether an offence has been committed and
\nif so, whether by the person or persons charged with the crime.\t In
\nthe circumstances, the judgment and order of the High Court was
\nset aside by this Court.\n<\/p>\n
\tTested in the light of the principles aforesaid, the impugned
\norders dated 10th January, 2002 and 11th January, 2002 must be
\nheld to be orders passed by over-stepping the para-meters of
\njudicial interference in such matters.\tIn the first place, arrest of an
\naccused is a part of the investigation and is within the discretion of
\nthe investigating officer.  Section 41<\/a> of the Code of Criminal
\nProcedure provides for arrest by a police officer without an order
\nfrom a Magistrate and without a warrant.  The section gives
\ndiscretion to the police officer who may, without an order from a
\nMagistrate and even without a warrant, arrest any person in the
\nsituations enumerated in that section.\tIt is open to him, in the
\ncourse of investigation, to arrest any person who has been
\nconcerned with any cognizable offence or against whom
\nreasonable complaint has been made or credible information has
\nbeen received, or a reasonable suspicion exists of his having been
\nso concerned.  Obviously, he is not expected to act in a mechanical
\nmanner and in all cases to arrest the accused as soon as the report
\nis lodged.  In appropriate cases, after some investigation, the
\ninvestigating officer may make up his mind as to whether it is
\nnecessary to arrest the accused person.\t At that stage the Court has
\nno role to play.  Since the power is discretionary, a police officer is
\nnot always bound to arrest an accused even if the allegation against
\nhim is of having committed a cognizable offence.  Since an arrest
\nis in the nature of an encroachment on the liberty of the subject and
\ndoes affect the reputation and status of the citizen, the power has to
\nbe cautiously exercised.  It depends inter alia upon the nature of
\nthe offence alleged and the type of persons who are accused of
\nhaving committed the cognizable offence.  Obviously, the power
\nhas to be exercised with caution and circumspection.\n<\/p>\n
\tIn the instant case the appellants had not been arrested.  It
\nappears that the result of the investigation showed that no amount
\nhad been defalcated.  We are here not concerned with the
\ncorrectness of the conclusion that the investigating officer may
\nhave reached.  What is, however, significant is that the
\ninvestigating officer did not consider it necessary, having regard to
\nall the facts and circumstances of the case, to arrest the accused.  In
\nsuch a case there was no justification for the High Court to direct
\nthe State to arrest the appellants against whom the first information
\nreport was lodged, as it amounted to unjustified interference in the
\ninvestigation of the case.  The mere fact that the bail applications
\nof some of the appellants had been rejected is no ground for
\ndirecting their immediate arrest.  In the very nature of things, a
\nperson may move the Court on mere apprehension that he may be
\narrested.  The Court may or may not grant anticipatory bail
\ndepending upon the facts and circumstances of the case and the
\nmaterial placed before the Court.  There may, however, be cases
\nwhere the application for grant of anticipatory bail may be rejected
\nand ultimately, after investigation, the said person may not be put
\nup for trial as no material is disclosed against him in the course of
\ninvestigation.\tThe High Court proceeded on the assumption that
\nsince petitions for anticipatory bail had been rejected, there was no
\noption open for the State but to arrest those persons.\tThis
\nassumption, to our mind, is erroneous.\tA person whose petition for
\ngrant of anticipatory bail has been rejected may or may not be
\narrested by the investigating officer depending upon the facts and
\ncircumstances of the case, nature of the offence, the background of
\nthe accused, the facts disclosed in the course of investigation and
\nother relevant considerations.\n<\/p>\n
We have, therefore, no doubt that the order dated 10th
\nJanuary, 2002, in so far as it directs the arrest of the appellants,
\nmust be set aside.  So far as the order dated 11th January, 2002 is
\nconcerned, it gives an impression that the High Court has held that
\nit was not open to the investigating officer, in view of the order
\npassed by the High Court dated 7th September, 2001 rejecting the
\nanticipatory bail petitions of some of the appellants, to treat the
\ncase as ‘C’ summary as it has been found that no funds had been
\nmisappropriated.  By the impugned order dated 16th January, 2002
\nthe High Court has in fact shown its anxiety to see that the “State
\nexpeditiously conclude the investigation in the case and file
\ncharge-sheet”.\t We are afraid, such a direction cannot be sustained
\nin view of the settled principle of law on the subject.\t It is not
\nnecessary for us to multiply authorities but we may only refer to
\nAbhinandan Jha and others  Vs. Dinesh Mishra : AIR 1968 SC
\n117, where this Court observed thus:-\n<\/p>\n
 “Then the question is, what is the position,
\nwhen the Magistrate  is dealing with a report
\nsubmitted by the police, under Section 173<\/a>, that no
\ncase is made out for sending up an accused for
\ntrial, which report, as we have already indicated, is
\ncalled, in the area in question, as a ‘final report’?
\nEven in those cases, if the Magistrate agrees with
\nthe said report, he may accept the final report and
\nclose the proceedings.\tBut there may be instances
\nwhen the Magistrate may take the view, on a
\nconsideration of the final report, that the opinion
\nformed by the police is not based on a full and
\ncomplete investigation, in which case, in our
\nopinion, the Magistrate will have ample
\njurisdiction to give directions to the police, under
\nS. 156(3), to make a further investigation.  That is,
\nif the Magistrate feels, after considering the final
\nreport, that the investigation is unsatisfactory, or
\nincomplete, or that there is scope for further
\ninvestigation, it will be open to the Magistrate to
\ndecline to accept the final report and direct the
\npolice to make further investigation, under Section
\n156(3)<\/a>.\t The police, after such further
\ninvestigation, may submit a charge-sheet, or, again
\nsubmit a final report, depending upon the further
\ninvestigation made by them.  If ultimately, the
\nMagistrate forms the opinion that the facts, set out
\nin the final report, constitute an offence, he can
\ntake cognizance of the offence, under section
\n190(1)<\/a> (b), notwithstanding the contrary opinion of
\nthe police, expressed in the final report.The
\nfunctions of the Magistracy and the police, are
\nentirely different, and though, in the circumstances
\nmentioned earlier, the Magistrate may or may not
\naccept the report, and take suitable action,
\naccording to law, he cannot certainly infringe (sic
\nimpinge?) upon the jurisdiction of the police, by
\ncompelling them to change their opinion, so as to
\naccord with his view.\n<\/p>\n
Therefore, to conclude, there is no power,
\nexpressly or impliedly conferred, under the Code<\/a>,
\non a Magistrate to call upon the police to submit a
\ncharge-sheet, when they have sent a report under
\nsection 169<\/a> of the Code, that there is no case made
\nout for sending up an accused for trial”.\n<\/p>\n
\tThe principle, therefore, is well settled that it is for the
\ninvestigating agency to submit a report to the Magistrate after full
\nand complete investigation.  The investigating agency may submit
\na report finding the allegations substantiated.\t It is also open to the
\ninvestigating agency to submit a report finding no material to
\nsupport the allegations made in the first information report.  It is
\nopen to the Magistrate concerned to accept the report or to order
\nfurther enquiry.  But what is clear is that the Magistrate cannot
\ndirect the investigating agency to submit a report that is in accord
\nwith his views.\t Even in a case where a report is submitted by the
\ninvestigating agency finding that no case is made out for
\nprosecution, it is open to the Magistrate to dis-agree with the report
\nand to take cognizance, but what he cannot do is to direct the
\ninvestigating agency to submit a report to the effect that the
\nallegations have been supported by the material collected during
\nthe course of investigation.\n<\/p>\n
\tIn the instant case the investigation is in progress.  It is not
\nnecessary for us to comment on the tentative view of the
\ninvestigating agency.  It is the statutory duty of the investigating
\nagency to fully investigate the matter and then submit a report to
\nthe concerned Magistrate.  The Magistrate will thereafter proceed
\nto pass appropriate order in accordance with law.  It was not
\nappropriate for the High Court in these circumstances to issue a
\ndirection that the case should not only be investigated, but a charge
\nsheet must be submitted.  In our view the High Court  exceeded its
\njurisdiction in making this direction which deserves to be set aside.
\nWhile it is open to the High Court, in appropriate cases, to give
\ndirections for prompt investigation etc., the High Court cannot
\ndirect the investigating agency to submit a report that is in accord
\nwith its views as that would amount to unwarranted interference
\nwith the investigation of the case by inhibiting the exercise of
\nstatutory power by the investigating agency.\n<\/p>\n
\tIn these circumstances, therefore, we set aside the direction
\ncontained in the order of the High Court dated 10th January, 2002
\ndirecting the arrest of the appellants.\t We also set aside the
\ndirection made by the High Court directing the investigating
\nagency to submit a charge-sheet.  However, the investigating
\nagency must promptly take all necessary steps, conclude the
\ninvestigation and submit its report to the concerned Magistrate.  It
\nis open to the investigating agency to submit such report as it
\nconsiders appropriate, having regard to the facts and circumstances
\nof the case and result of the investigation.  After such a final report
\nis submitted by the investigating agency, the concerned Magistrate
\nwill proceed to deal with the matter further in accordance with law
\nwithout being influenced by any observation made by the High
\nCourt in the impugned orders.\n<\/p>\n
\tThe appeals are allowed in the above terms.<\/p>\n","protected":false},"excerpt":{"rendered":"
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.) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-267850","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM.C. 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