Madhya Pradesh High Court
Dhananjay Dwivedi vs Home Department on 5 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:46838 1 W.P. No.25762/2024 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE G.S. AHLUWALIA ON THE 5th OF SEPTEMBER, 2024 WRIT PETITION No. 25762 of 2024 DHANANJAY DWIVEDI Versus HOME DEPARTMENT AND OTHERS ............................................................................................................................................ Appearance: Shri Sachin Jain - Advocate for the petitioner. Shri Lalit Joglekar - Government Advocate for the respondents/State. ............................................................................................................................................ ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following relief(s):-
1. This Hon‟ble Court may be pleased to issue
summons, calling the Case Diary and the entire
record of Crime Number 0061 of 2024, police
station, Dharkundi, district Satna, M.P. for its
kind for perusal.
2. This Hon‟ble Court may kindly be pleased to
issue a writ in the nature of certiorari and
quashing the impugned proceedings of enquiry
and the subsequent FIR.
3. This Hon‟ble Court may kindly be pleased to
issue a writ in the nature of mandamus directing
the respondent to conduct fair enquiry and
investigation in the matter through an
independent investigating agency in the interest
of justice.
4. That, any other relief as deemed fit by this
Hon‟ble Court may also be granted by this
Hon‟ble Court along with the cost of these
proceedings.
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2. It is the case of petitioner that an FIR has been registered against
him on the allegation of involvement of petitioner in the scam relating to
purchase of Wheat crops and by feeding data containing mis-
information about the purchase, fraud has been committed. It is
submitted that the FIR has been lodged by one Amit Goud who himself
has been placed under suspension by the Collector. Payments to farmers
have been made at odd timings whereas working hours as per the
guidelines are up to 8PM. The FIR was lodged on the basis of enquiry
which was conducted in a hasteful manner without following principles
of natural justice. No opportunity of hearing has been given to petitioner
before registration of FIR.
3. Heard learned counsel for the petitioner.
4. So far as the question of grant of opportunity prior to lodging of
FIR is concerned, it is well established principle of law that suspect has
no right of pre-audience before lodging of FIR.
5. The Supreme Court in the case of Union of India and Another
Vs. W.N. Chadha reported in 1993 Supp (4) SCC 260 has held that if
prior notice and an opportunity of hearing are to be given to an accused
in every criminal case before taking any action against him, such a
procedure would frustrate the proceedings, obstruct the taking of prompt
action as law demands, defeat the ends of justice and make the
provisions of law relating to investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant statutory provisions
relating to the procedure of investigation does not attract such a course
in the absence of any statutory obligation to the contrary.
6. The Supreme Court in the case of Narender G. Goel Vs. State of
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Maharashtra and Another reported in (2009) 6 SCC 65 has held as
under:-
“11. It is well settled that the accused has no
right to be heard at the stage of investigation.
The prosecution will however have to prove its
case at the trial when the accused will have full
opportunity to rebut/question the validity and
authenticity of the prosecution case. In Sri
Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P. [(1999)
5 SCC 740 : 1999 SCC (Cri) 1047] this Court
observed : (SCC p. 743, para 11)
“11. … There is nothing in
Section 173(8) to suggest that the
court is obliged to hear the accused
before any such direction is made.
Casting of any such obligation on
the court would only result in
encumbering the court with the
burden of searching for all the
potential accused to be afforded with
the opportunity of being heard.”
12. The accused can certainly avail himself of an
opportunity to cross-examine and/or otherwise
controvert the authenticity, admissibility or legal
significance of material evidence gathered in the
course of further investigations. Further in light
of the views expressed by the investigating
officer in his affidavit before the High Court, it is
apparent that the investigating authorities would
inevitably have conducted further investigation
with the aid of CFS under Section 173(8) of the
Code.”
7. The Supreme Court in the case of Anju Chaudhary Vs. State of
Uttar Pradesh and Another reported in (2013) 6 SCC 384 has held as
under:-
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“30. Section 154 of the Code places an
unequivocal duty upon the police officer-in-
charge of a police station to register FIR upon
receipt of the information that a cognizable
offence has been committed. It hardly gives any
discretion to the said police officer. The genesis
of this provision in our country in this regard is
that he must register the FIR and proceed with
the investigation forthwith. While the position of
law cannot be dispelled in view of the three-
Judge Bench judgment of this Court in State of
U.P. v. Bhagwant Kishore Joshi [AIR 1964 SC
221 : (1964) 1 Cri LJ 140], a limited discretion is
vested in the investigating officer to conduct a
preliminary inquiry pre-registration of an FIR as
there is absence of any specific prohibition in the
Code, express or implied. The subsequent
judgments of this Court have clearly stated the
proposition that such discretion hardly exists. In
fact the view taken is that he is duty-bound to
register an FIR. Then the question that arises is
whether a suspect is entitled to any pre-
registration hearing or any such right is vested in
the suspect.
31. The rule of audi alteram partem is subject to
exceptions. Such exceptions may be provided by
law or by such necessary implications where no
other interpretation is possible. Thus rule of
natural justice has an application, both under the
civil and criminal jurisprudence. The laws like
detention and others, specifically provide for
post-detention hearing and it is a settled principle
of law that application of this doctrine can be
excluded by exercise of legislative powers which
shall withstand judicial scrutiny. The purpose of
the Criminal Procedure Code and the Penal
Code, 1860 is to effectively execute
administration of the criminal justice system and
protect society from perpetrators of crime. It has
a twin purpose; firstly to adequately punish the
offender in accordance with law and secondly, to
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ensure prevention of crime. On examination, the
scheme of the Criminal Procedure Code does not
provide for any right of hearing at the time of
registration of the first information report. As
already noticed, the registration forthwith of a
cognizable offence is the statutory duty of a
police officer-in-charge of the police station. The
very purpose of fair and just investigation shall
stand frustrated if pre-registration hearing is
required to be granted to a suspect. It is not that
the liberty of an individual is being taken away
or is being adversely affected, except by the due
process of law. Where the officer-in-charge of a
police station is informed of a heinous or
cognizable offence, it will completely destroy the
purpose of proper and fair investigation if the
suspect is required to be granted a hearing at that
stage and is not subjected to custody in
accordance with law. There would be
predominant possibility of a suspect escaping the
process of law. The entire scheme of the Code
unambiguously supports the theory of exclusion
of audi alteram partem pre-registration of an FIR.
Upon registration of an FIR, a person is entitled
to take recourse to the various provisions of bail
and anticipatory bail to claim his liberty in
accordance with law. It cannot be said to be a
violation of the principles of natural justice for
two different reasons : firstly, the Code does not
provide for any such right at that stage, secondly,
the absence of such a provision clearly
demonstrates the legislative intent to the contrary
and thus necessarily implies exclusion of hearing
at that stage. This Court in Union of
India v. W.N. Chadha [1993 Supp (4) SCC 260 :
1993 SCC (Cri) 1171] clearly spelled out this
principle in para 98 of the judgment that reads as
under : (SCC p. 293)
“98. If prior notice and an
opportunity of hearing are to be
given to an accused in every
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criminal case before taking any
action against him, such a procedure
would frustrate the proceedings,
obstruct the taking of prompt action
as law demands, defeat the ends of
justice and make the provisions of
law relating to the investigation
lifeless, absurd and self-defeating.
Further, the scheme of the relevant
statutory provisions relating to the
procedure of investigation does not
attract such a course in the absence
of any statutory obligation to the
contrary.”
32. In Samaj Parivartan Samudaya v. State of
Karnataka [(2012) 7 SCC 407 : (2012) 3 SCC
(Cri) 365], a three-Judge Bench of this Court
while dealing with the right of hearing to a
person termed as “suspect” or “likely offender”
in the report of the CEC observed that there was
no right of hearing. Though the suspects were
already interveners in the writ petition, they were
heard. Stating the law in regard to the right of
hearing, the Court held as under : (SCC p. 426,
para 50)
“50. There is no provision in
CrPC where an investigating agency
must provide a hearing to the
affected party before registering an
FIR or even before carrying on
investigation prior to registration of
case against the suspect. CBI, as
already noticed, may even conduct
pre-registration inquiry for which
notice is not contemplated under the
provisions of the Code, the Police
Manual or even as per the precedents
laid down by this Court. It is only in
those cases where the court directs
initiation of investigation by a
specialised agency or transfer
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investigation to such agency from
another agency that the court may, in
its discretion, grant hearing to the
suspect or affected parties. However,
that also is not an absolute rule of
law and is primarily a matter in the
judicial discretion of the court. This
question is of no relevance to the
present case as we have already
heard the interveners.”
33. While examining the abovestated principles
in conjunction with the scheme of the Code,
particularly Sections 154 and 156(3) of the Code,
it is clear that the law does not contemplate grant
of any personal hearing to a suspect who attains
the status of an accused only when a case is
registered for committing a particular offence or
the report under Section 173 of the Code is filed
terming the suspect an accused that his rights are
affected in terms of the Code. Absence of
specific provision requiring grant of hearing to a
suspect and the fact that the very purpose and
object of fair investigation is bound to be
adversely affected if hearing is insisted upon at
that stage, clearly supports the view that hearing
is not any right of any suspect at that stage.
34. Even in the cases where report under Section
173(2) of the Code is filed in the court and
investigation records the name of a person in
column (2), or even does not name the person as
an accused at all, the court in exercise of its
powers vested under Section 319 can summon
the person as an accused and even at that stage of
summoning, no hearing is contemplated under
the law.”
8. The Supreme Court in the case of E. Sivakumar Vs. Union of
India and Others reported in (2018) 7 SCC 365 has held as under:-
“11. Our attention was invited to the
observations made in para 73 in State of
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Punjab v. Davinder Pal Singh Bhullar, (2011)
14 SCC 770, which in turn adverts to the
exposition in D. Venkatasubramaniam v. M.K.
Mohan Krishnamachari, (2009) 10 SCC 488,
wherein it has been held that an order passed
behind the back of a party is a nullity and liable
to be set aside only on this score. That may be
so, if the order to be passed behind the back of
the party was to entail in some civil
consequence to that party. But a person who is
named as an accused in the FIR, who otherwise
has no right to be heard at the stage of
investigation or to have an opportunity of
hearing as a matter of course, cannot be heard
to say that the direction issued to transfer the
investigation to CBI is a nullity. This ground, in
our opinion, is an argument of desperation and
deserves to be rejected.”
9. Thus, it is clear that an accused has no right of pre-audience
before registration of FIR.
10. There appears to be a scam according to which forged entries
were made with regard to 2360 quintals and 1500 quintals of food grains
and thereafter they were falsely shown to have been transported by
Trucks to Railway Station whereas the location of Trucks were found to
be at different place. Lot of persons are involved in the present case
because IDs of multiple accused persons were used.
11. It is well established principle of law that this Court in exercise of
power under Article 226 of Constitution of India or under Section 482
of Cr.P.C. should not stifle the legitimate investigation thereby killing
the unborn baby.
12. The Supreme Court in the case of Neeharika Infrastructure
Private Limited Vs. State of Maharashtra and Others reported in
(2021) 19 SCC 401 has held as under:-
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“12.8. In Prakash P. Hinduja [Union of India v.
Prakash P. Hinduja, (2003) 6 SCC 195 : 2003
SCC (Cri) 1314] , it is observed and held by this
Court that the court would not interfere with the
investigation or during the course of investigation
which would mean from the time of lodging of the
first information report till the submission of the
report by the officer in charge of the police station
in court under Section 173(2)CrPC, this field being
exclusively reserved for the investigating agency.
12.9. In P. Chidambaram v. Directorate of
Enforcement [P. Chidambaram v. Directorate of
Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC
(Cri) 509] , this Court while considering the
powers of the investigating agency to investigate
the cognizable offence, has observed in paras 61
and 64 to 67 as under : (SCC pp. 54 & 56-57)
“61. The investigation of a cognizable
offence and the various stages thereon
including the interrogation of the accused is
exclusively reserved for the investigating
agency whose powers are unfettered so
long as the investigating officer exercises
his investigating powers well within the
provisions of the law and the legal bounds.
In exercise of its inherent power under
Section 482 CrPC, the Court can interfere
and issue appropriate direction only when
the Court is convinced that the power of the
investigating officer is exercised mala fide
or where there is abuse of power and non-
compliance of the provisions of the Code of
Criminal Procedure. However, this power
of invoking inherent jurisdiction to issue
direction and interfering with the
investigation is exercised only in rare cases
where there is abuse of process or non-
compliance of the provisions of the
Criminal Procedure Code.
***
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64. Investigation into crimes is the
prerogative of the police and excepting in
rare cases, the judiciary should keep out all
the areas of investigation. In State of Bihar
v. P.P. Sharma [State of Bihar v. P.P.
Sharma, 1992 Supp (1) SCC 222 : 1992
SCC (Cri) 192] , it was held that : (SCC p.
258, para 47)
„47. The investigating officer is an
arm of the law and plays a pivotal
role in the dispensation of criminal
justice and maintenance of law and
order. … Enough power is therefore
given to the police officer in the
area of investigatory process and
granting him or her great latitude to
exercise his discretionary power to
make a successful investigation….‟
65. In Dukhishyam Benupani v. Arun
Kumar Bajoria [Dukhishyam Benupani v.
Arun Kumar Bajoria, (1998) 1 SCC 52 :
1998 SCC (Cri) 261] , this Court held that :
(SCC p. 55, para 7)
„7. … It is not the function of the
court to monitor investigation
processes so long as such
investigation does not transgress
any provision of law. It must be left
to the investigating agency to decide
the venue, the timings and the
questions and the manner of putting
such questions to persons involved
in such offences. A blanket order
fully insulating a person from arrest
would make his interrogation a
mere ritual….‟
66. As held by the Supreme Court in a
catena of judgments that there is a well-
defined and demarcated function in the
field of investigation and its subsequent
adjudication. It is not the function of the
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court to monitor the investigation process
so long as the investigation does not violate
any provision of law. It must be left to the
discretion of the investigating agency to
decide the course of investigation. If the
court is to interfere in each and every stage
of the investigation and the interrogation of
the accused, it would affect the normal
course of investigation. It must be left to
the investigating agency to proceed in its
own manner in interrogation of the
accused, nature of questions put to him and
the manner of interrogation of the accused.
67. It is one thing to say that if the power of
investigation has been exercised by an
investigating officer mala fide or non-
compliance of the provisions of the
Criminal Procedure Code in the conduct of
the investigation, it is open to the court to
quash the proceedings where there is a
clear case of abuse of power. It is a
different matter that the High Court in
exercise of its inherent power under
Section 482CrPC, can always issue
appropriate direction at the instance of an
aggrieved person if the High Court is
convinced that the power of investigation
has been exercised by the investigating
officer mala fide and not in accordance
with the provisions of the Criminal
Procedure Code. However, as pointed out
earlier that power is to be exercised in rare
cases where there is a clear abuse of power
and non-compliance of the provisions
falling under Chapter XII of the Code of
Criminal Procedure requiring the
interference of the High Court. In the initial
stages of investigation where the Court is
considering the question of grant of regular
bail or pre-arrest bail, it is not for the Court
to enter into the demarcated function of the
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investigation and collection of
evidence/materials for establishing the
offence and interrogation of the accused
and the witnesses.”
12.10. In the recent decision of this Court in Skoda
Auto Volkswagen India (P) Ltd. v. State of U.P.
[Skoda Auto Volkswagen India (P) Ltd. v. State of
U.P., (2021) 5 SCC 795 : (2021) 3 SCC (Civ) 294
: (2021) 2 SCC (Cri) 709] , it is observed in paras
40 to 42 as under : (SCC pp. 805-806)
“40. It is needless to point out that ever
since the decision of the Privy Council in
King Emperor v. Khwaja Nazir Ahmad
[King Emperor v. Khwaja Nazir Ahmad,
1944 SCC OnLine PC 29 : (1943-44) 71 IA
203 : AIR 1945 PC 18] , the law is well
settled that Courts would not thwart any
investigation. It is only in cases where no
cognizable offence or offence of any kind
is disclosed in the first information report
that the court will not permit an
investigation to go on.
41. As cautioned by this Court in State of
Haryana v. Bhajan Lal [State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , the power of
quashing should be exercised very
sparingly and with circumspection and that
too in the rarest of rare cases. While
examining a complaint, the quashing of
which is sought, the Court cannot embark
upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the FIR or in the complaint. In
S.M. Datta v. State of Gujarat [S.M. Datta
v. State of Gujarat, (2001) 7 SCC 659 :
2001 SCC (Cri) 1361 : 2001 SCC (L&S)
1201] this Court again cautioned that
criminal proceedings ought not to be
scuttled at the initial stage. Quashing of a
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complaint should rather be an exception
and a rarity than an ordinary rule.
42. In S.M. Datta [S.M. Datta v. State of
Gujarat, (2001) 7 SCC 659 : 2001 SCC
(Cri) 1361 : 2001 SCC (L&S) 1201] , this
Court held that if a perusal of the first
information report leads to disclosure of an
offence even broadly, law courts are barred
from usurping the jurisdiction of the police,
since the two organs of the State operate in
two specific spheres of activities and one
ought not to tread over the other sphere.
13. From the aforesaid decisions of this Court,
right from the decision of the Privy Council in
Khwaja Nazir Ahmad [King Emperor v. Khwaja
Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-
44) 71 IA 203 : AIR 1945 PC 18], the following
principles of law emerge:
13.1. Police has the statutory right and duty under
the relevant provisions of the Code of Criminal
Procedure contained in Chapter XIV of the Code
to investigate into cognizable offences.
13.2. Courts would not thwart any investigation
into the cognizable offences.
13.3. However, in cases where no cognizable
offence or offence of any kind is disclosed in the
first information report the Court will not permit
an investigation to go on.
13.4. The power of quashing should be exercised
sparingly with circumspection, in the “rarest of
rare cases”. (The rarest of rare cases standard in its
application for quashing under Section 482 CrPC
is not to be confused with the norm which has
been formulated in the context of the death
penalty, as explained previously by this Court.)
13.5. While examining an FIR/complaint,
quashing of which is sought, the Court cannot
embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made
in the FIR/complaint.
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13.6. Criminal proceedings ought not to be scuttled
at the initial stage.
13.7. Quashing of a complaint/FIR should be an
exception and a rarity than an ordinary rule.
13.8. Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since the
two organs of the State operate in two specific
spheres of activities. The inherent power of the
court is, however, recognised to secure the ends of
justice or prevent the above of the process by
Section 482 CrPC.
13.9. The functions of the judiciary and the police
are complementary, not overlapping.
13.10. Save in exceptional cases where non-
interference would result in miscarriage of justice,
the Court and the judicial process should not
interfere at the stage of investigation of offences.
13.11. Extraordinary and inherent powers of the
Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice.
13.12. The first information report is not an
encyclopedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature
to pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process
of law. During or after investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the
learned Magistrate in accordance with the known
procedure.
13.13. The power under Section 482 CrPC is very
wide, but conferment of wide power requires the
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Court to be cautious. It casts an onerous and more
diligent duty on the Court.
13.14. However, at the same time, the Court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law,
more particularly the parameters laid down by this
Court in R.P. Kapur [R.P. Kapur v. State of
Punjab, 1960 SCC OnLine SC 21 : AIR 1960 SC
866] and Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426], has the jurisdiction to quash the
FIR/complaint.
13.15. When a prayer for quashing the FIR is made
by the alleged accused, the Court when it exercises
the power under Section 482 CrPC, only has to
consider whether or not the allegations in the FIR
disclose the commission of a cognizable offence
and is not required to consider on merits whether
the allegations make out a cognizable offence or
not and the court has to permit the investigating
agency/police to investigate the allegations in the
FIR.”
13. Accordingly, considering the nature of allegations made in the
FIR, this Court is of considered opinion that no case is made out for
quashment of FIR.
14. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
S.M.
Digitally signed by
SHUBHANKAR MISHRA
Date: 2024.09.17
16:13:22 +05’30’