Tuesday, 10 November 2020

Whether police can further investigate the criminal case even without the permission of Magistrate?

 Their Lordships in the case of State of

Andhra Pradesh vs. A.S. Peter (supra) have in the context of section 173 of

Code of Criminal Procedure held that the law does not mandate taking prior

permission of Magistrate for further investigation. Their Lordships further

held that carrying out further investigation even after filing of chargesheet, is

a statutory right of the police. A distinction also exists between further

investigation and reinvestigation. It is observed that whereas reinvestigation

without prior permission is necessarily forbidden, further investigation is not.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION STAMP NO. 4278 OF 2020

IN

CRIMINAL WRIT PETITION STAMP NO. 4132 OF 2020

Arnab Manoranjan Goswami  Vs The State of Maharashtra & Ors.


CORAM : S. S. SHINDE & M.S. KARNIK, JJ.

PRONOUNCED ON: NOVEMBER 09, 2020.

1. The present application is filed for interim protection/bail in the

Criminal Writ Petition Stamp No. 4132 of 2020 filed under Article 226 of the

Constitution of India read with Section 482 of the Code of Criminal

Procedure ('Cr.P.C.' for short) praying for a writ of Habeas Corpus to produce

the Petitioner, who has been illegally arrested and wrongfully detained by the

Station House Officer, Alibaug Police Station, Raigad, in relation to First

Information Report ('FIR' for short) being C.R.No.0059/2018 dated 5/5/2018

registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of

the Indian Penal Code ('said IPC' for short) despite a closure report being

filed. The Petitioner also prays for quashing of the said FIR.

2. So far as the main Writ Petition is concerned, the petitioner is

alleging gross abuse of State’s power by the respondents in effecting his

arrest on 04.11.2020 and consequent alleged illegal detention. As there are

allegations of malafides, an opportunity needs to be given to the respondents

to file a counter and accordingly with the consent of learned counsel

appearing for the parties, the petition is posted for hearing on 10.12.2020.

3. Mr. Harish Salve, learned Senior Advocate for Petitioner, Mr.

Amit Desai, learned Senior Advocate for State and Mr. Shirish Gupte,

learned Senior Advocate appearing for the victim have confined their

arguments limited to the relief claimed in the Interim Application. Therefore,

we confine our adjudication restricted to the reliefs claimed in the Interim

Application.

4. Learned Senior Advocate Mr. Harish Salve would contend that

not only the arrest of the Petitioner is a malafide action and abuse of the

State’s power, but the arrest is ex-facie illegal in view of the closure report

filed before the Learned Magistrate. According to the learned Senior

Advocate, the re-investigation commenced by the Respondents is without

seeking permission of the Magistrate under Section 173 (8) of the Cr.P.C. He

would urge that this is a fit case where this Court should exercise its

extraordinary powers under Article 226 of the Constitution of India and

inherent jurisdiction under Section 482 of the Cr.P.C. protecting the petitioner

in the interregnum by granting him bail. We have therefore considered the

pleadings and grounds taken in the Writ Petition and also perused the

documents relied by the Petitioner for the limited purpose of deciding the

present application.

5. In the petition there is reference to the FIR dated 5/5/2018. It is

in relation to the alleged suicide committed by deceased Anvay Naik and his

mother Kumud Naik, who were Directors of an interior design company

'Concorde Design Pvt. Ltd.' ('CDPL' for short). It is alleged that the deceased


left behind a note, wherein it was stated that the deceased was committing

suicide on account of the non-payment of CDPL's dues. The officers of the

Alibaug Police Station visited the petitioner's 'ARG Outlier Media Private

Limited' ('ARG' for short) office informing him about the unfortunate

incident and the note left behind by the deceased which had the name of the

petitioner.

6. It is pleaded by the Petitioner that he was questioned regarding

the transaction between 'ARG' and 'CDPL'. The petitioner provided all

necessary and available details to the police officers and also assured them of

his full co-operation during the course of the investigation. On 7th May 2018,

Mr. S. Sukharam and Mr. Vikas Khanchandani of ARG along with their

Advocate went to the Alibaug police station with all the required documents

asked from them. The petitioner co-operated with the investigation in every

possible way. Even the statement of the petitioner came to be recorded.

7. Our attention is invited to the report filed by the Station House

Officer, Alibaugh Police Station, Raigad, dated 16/4/2019 in the Court of the

Chief Judicial Magistrate for 'A' Summary. The Dy.S.P., Alibaug, accordingly

submitted a report and prayed for grant of 'A' Summary.


8. The Chief Judicial Magistrate, Raigad, vide order dated

16/4/2019 accepted the report and granted 'A' Summary as prayed for.

9. Learned Senior Advocate Mr. Salve would submit that in blatant

violation of the fundamental rights to life and personal liberty of the

petitioner and his dignity guaranteed under Article 21 of the Constitution of

India, the petitioner was arrested. The petitioner was forced out from his

residence with around 20 officials of Mumbai Police barging into his house.

The petitioner was dragged into the police vehicle in the process of causing

his arrest. His son was assaulted in the process. The Petitioner’s wife was

informed that he was being arrested in connection with the said FIR.

10. Learned Senior Advocate would urge that once the case was

decisively closed by the Mumbai Police in 2019, which report was accepted

by the Chief Judicial Magistrate, the same is reinvestigated with the sole

purpose of misusing power, concocting facts and forcefully arresting the

petitioner in a prima facie act of revenge and vengeance for his news

coverage which questioned those in power in the State of Maharashtra. Mr.

Salve would submit that this is another attempt of the State machinery to

implicate the petitioner. This is nothing but a brazen attempt of vendetta

politics against the petitioner and his channel.


11. Mr. Salve then took us through the averments made in the

Petition and the discussions in the debate before the State Assembly

particularly those of Mr. Sunil Prabhu, Dr. Nitin Raut and Mr. Chagan

Bhujbal, which are at pages 94 to 121 of the Petition. He would contend that

there is a desperation on the part of the political dispensation to falsely

implicate the petitioner in the said case and to reopen the matter. Mr. Anil

Deshmukh (Hon’ble Home Minister in the Ruling coalition) readily obliged.

12. Mr. Salve, learned Senior Advocate, then invited our attention to

the details set out in the Petition to show that there was purely a commercial

relationship between ARG and CDPL. CDPL was unable to meet the dates

for completion of works on several occasions. Several defects in the works

were also discovered. The ARG in fact made a total payment of

Rs.5,21,54,383/- under the work orders. A balance of only Rs.74,23,014/- is

outstanding under the work orders which was legitimately withheld by the

ARG with the intention to pay such amounts upon rectification of defects and

completion of works in accordance with the terms of the work orders. There

was exchange of correspondence between the wife of deceased and ARG. In

or around 2020, the wife of deceased, having failed to extract money from

ARG, approached the political dispensation and upon immense pressure from

certain Cabinet Ministers in the Maharashtra Government, there was a demand to re-open and re-investigate the matter in connection with the said

FIR so that the petitioner could be falsely implicated. Our attention is invited

to the news reports at Exhibits H, I, J and K.

13. Mr. Salve would submit that the petitioner did not have direct

interaction with the deceased regarding the works or regarding payment as is

the case with large organizations. The deceased was one of the vendors and

the matter regarding payments was handled by the Finance Department. Mr.

Salve would urge that in these circumstances, the ingredients to attract the

offence of abetment is absent i.e. the intention of the accused to aid, abet or

instigate the deceased to commit suicide. Moreover, there is no direct

involvement of the petitioner with the deceased.

14. Learned Senior Advocate would submit that there are no

allegations in the FIR to establish that the suicide by the deceased was

directly linked to the instigation or abetment by the Petitioner. In support of

his submissions, learned Senior Advocate relied upon the following decisions

of Hon’ble Supreme Court:-M. Arjunan Vs. State1,, M. Mohan Vs. State2, SS

Cheena Vs. Bijay Kumar Mahajan & Anr3, Amlendu Pal Vs. State of West

Bengal4, Gurcharan Singh Vs. State of Punjab5, Rajesh Vs. State of Haryana6.

1 (2019) 3 SCC 315

2 (2011) 3 SCC 626

3 (2010) 12 SCC 190

4 (2010) 1 SCC 707

5 Supreme Court of India Criminal Appeal No. 40 of 2011

6 2019 SCC Online SC 44


15. Learned Senior Advocate then invited our attention to the order

dated 16.04.2019 passed by the Chief Judicial Magistrate, Raigad, granting

'A' summary as prayed by the Dy.S.P., Alibaug in terms of his report. He

would submit that once a case is closed by the Chief Judicial Magistrate, then

the Investigating Officer has no power to re-investigate the matter unless the

order granting 'A' summary by Chief Judicial Magistrate is set aside.

According to the learned Senior Advocate, the Investigating Officer did not

even approach the Magistrate seeking permission to re-investigate the matter.

He would submit that the action on the part of the police amounts to revising

the order of the Magistrate on their own. In support of his submissions,

learned Senior Advocate would rely upon the following decisions of Hon’ble

Supreme Court – Bhagwant Singh Vs. Commissioner of Police & Another7,

Vinubhai Haribhai Malaviya and Others Vs. State of Gujarat & Anr8, Inderjit

Singh Gerwal Vs. State of Punjab and another9, Gangadhar Janardan Mhatre

Vs. State of Maharashtra & Others10, Kishore Kumar Gyanchandani Vs. G.D.

Mehrotra and Another11, Vishnu Kumar Tiwari Vs.

7 (1985) 2 SCC 537

8 2019 SCC Online 1346

9 (2011) 12 SCC 588

10 (2004) 7 SCC 768

11 (2011) 15 SCC 513


State of Uttar Pradesh Through Secretary Home, Civil Secretariat, Lucknow

and Another.12

16. Learned Senior Advocate placed reliance on the decision in the

case of Vinubhai (supra), more particularly Para 34, to contend that only

Magistrate in exercise of powers under Section 173 (8) of Cr.P.C., can direct

further investigation. According to learned Senior Advocate, either the police

should have challenged the decision or invoked Section 156 (3) Cr.P.C.

Relying on the decision of Inderjit Singh Gerwal (supra), learned Senior

Advocate would submit that even if the closure is without hearing or notice

to the first informant, still then, even if such order is void, the same has to be

set aside by approaching the appropriate forum. Till such time, the order

would continue to remain in force.

17. Mr. Salve, learned Senior Advocate, placed reliance on the

observations made in the order dated 04.11.2020 passed by the Chief Judicial

Magistrate on the remand report pursuant to the arrest of the Petitioner. He

would contend that in the said order, the Magistrate observed that, before reinvestigating

the matter, it appears that no permission of the Court has been

obtained. It is, therefore, his submission that if re-investigation itself is on an

illegal premise, the detention of the petitioner has to be declared as illegal.

12 (2019) 8 SCC 27


Mr. Salve then submitted that as the re-investigation is nothing but an abuse

of powers of the State and as circumstances would demonstrate that the State

is acting with malice (in fact) against the Petitioner, this is a fit case for

staying the investigation. He relied upon the decisions of Hon’ble Supreme

Court in the following cases - Asian Resurfacing of Road Agency Private

Limited and Anr. Vs. Central Bureau of Investigation13, Imtiyaz Ahmad Vs.

State of Uttar Pradesh and others14,Joginder Kumar Vs. State of UP &

Others15.

Drawing support from the decision of the Hon’ble Supreme

Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd.(supra),

Mr.Salve would contend that it is the duty of the Court to protect the

fundamental rights of citizens under article 226 of the Constitution of India,

the inherent power to do justice in cases involving the liberty of the citizens

would also sound under article 21 of the Constitution of India. Mr. Salve

would contend that the manner in which false cases are being registered

against the Petitioner and his channel and the apparent desperation of the

political dispensation to implicate the Petitioner in false cases, would justify

an exercise of power of this Court to stay the investigation and prevent the

abuse of process and promote the ends of justice.

13 (2018) 16 SCC 299

14 (2012) 2 SCC 688

15 (1994) 4 SCC 260


18. Mr. Salve would then submit that merely because the Petitioner

has remedy under Section 439 of Cr.P.C. to approach the Sessions Court for

regular bail, would not preclude the Petitioner from invoking writ jurisdiction

in an appropriate case where the extraordinary circumstances so warrant. In

support of aforesaid submission he placed reliance on the decision in Kartar

Singh Vs. State of Punjab16 to contend that even in a case under TADA, it has

been held that there is no reason why the High Court should not exercise its

jurisdiction and grant of bail to the accused in those cases where one or the

other exceptional ground is made out.

19. He would further invite our attention to the observations in Para

459 in Kartar Singh (supra) to point out the observations of their Lordships

that “since the High Court under the Constitution is a forum for enforcement

of fundamental right of a citizen it cannot be denuded of the power to

entertain a petition by a citizen claiming that the State machinery was

abusing its power and was acting in violation of the constitutional guarantee.

Rather it has a constitutional duty and responsibility to ensure that the State

machinery was acting fairly and not on extraneous considerations.” Learned

Senior Advocate would, therefore, urge that the Petitioner be released on bail.

16 (1994) 3 SCC 569


20. On the other hand, Mr. Desai, learned Senior Advocate

appearing on behalf of Respondent No.1 – State would submit that the

present petition seeking Writ of Habeas Corpus is not maintainable.

According to him, the Petitioner was in judicial custody on the date of filing

of the petition. He invited our attention to the decision of the Hon’ble

Supreme Court in the case of State of Maharashtra Vs. Tasneem Rizwan

Siddique17, Saurabh Kumar Vs. Jailor Koneila Jail18, Col B. Ramchandra Rao

(Dr) Vs. State of Orissa19 and Ankit Mutha Vs. UOI20 to submit that if the

Petitioner is in custody pursuant to the remand order by the jurisdictional

Magistrate in connection with the offences under investigation, the Writ of

Habeas Corpus is not maintainable. Mr. Desai would then submit that the

Petitioner has alternate efficacious remedy of approaching the Sessions Court

for bail under Section 439 of Cr.P.C. and, therefore, the prayer for grant of

bail ought not to be entertained. Mr. Desai relying upon the decision of the

Hon’ble Supreme Court in the case of State of Telangana Vs. Habib Abdullah

Jeelani21 would contend that the power under Section 482 Cr.P.C. or under

article 226 of the Constitution of India should be exercised sparingly with

judicial restraint. He would further submit that in fact the Petitioner had

applied for bail before Chief Judicial Magistrate but chose to withdraw the

17 (2018) 9 SCC 745

18 (2014) 13 SCC 436

19 (1972) 3 SCC 256

20 2020 SCC Onlilne Bom 121

21 (2017) 2 SCC 779

said application. There is no challenge by the Petitioner to the remand order

of the jurisdictional Magistrate.

21. Mr. Desai then dealt with the contention as regards the power of

police to further investigate in the said offences after grant of 'A' summary.

He would submit that there is an illegality on the part of the Investigating

Officer in his approach while submitting the “A” summary. Relying on Rule

219 of the Police Manual, Mr. Desai would submit that ‘A’ summary is filed

in the circumstances where though offence was committed, the same

remained undetected where there is no clue whatsoever about the culprits or

property or where the accused is known but there is no evidence to justify

him being sent up to the Magistrate (for trial). According to Mr. Desai, ‘A’

summary was granted by the Magistrate without following mandatory

requirement of hearing the informant. This, according to him, would go to the

root of the matter.

22. He would further submit that nonetheless, the Investigating

officer had intimated the jurisdictional Magistrate on 15th October 2020 that

orders were received from his superiors for conducting further investigation

of the said offences and that the same would be further investigated under

section 173 (8) of Cr.P.C. On the said application, the Chief Judicial

Magistrate, Alibaug had noted ‘seen and filed’. Mr. Desai further pointed out that thereafter during the course of investigation, even the statements are recorded by the Magistrate under Section 164 Cr.P.C. He would, therefore, submit that merely because 'A' summary is filed, would not preclude the

Investigating Officer from conducting further investigation of said offence on

receipt of fresh materials as the rights of victim too have to be considered.

23. Learned Senior Advocate would submit that the first informant victim

had made representation to the superior officer seeking redressal of

grievance. He would further submit that the Magistrate was yet to take the

cognizance of the case and therefore, the Investigating Officer is well within

his rights under Section 173 (8) to conduct the further investigation. In any

case, having intimated the Magistrate, the said intimation is sufficient

compliance of Section 173 (8) of Cr.P.C. Mr. Desai would rely upon the

decision of Hon’ble Supreme Court in the case of Nirmal Singh Kahlon Vs.

State of Punjab22 to submit that the victim of a crime is equally entitled to fair

investigation. Relying upon the decision of Hon’ble Supreme Court in the

case of Rama Chaudhary Vs. State of Bihar23 learned Senior Advocate would

submit that under Section 173 (8) Cr.P.C., the law does not mandate taking

prior permission from Magistrate for further investigation, even where a

charge sheet is filed, as carrying out further investigation is a statutory right

22 (2009) 1 SCC 441

23 (2009) 6 SCC 346


of the police. He would submit that granting of 'A' summary does not mean

that the case is closed, it only means that the offence is committed but the

same remains undetected as the accused is known but there is no evidence to

justify him being sent up to the Magistrate (for trial). Learned Senior

Advocate would invite our attention to Section 36 of Cr.P.C. to contend that

the police officer superior in rank to an officer in charge of a police station

may exercise the same powers, throughout the local area to which they are

appointed, as may be exercised by such officer within the limits of his

station. In his submission nothing precludes an Investigating Officer from

conducting further investigation upon receiving orders from the superiors

following a representation made by the victim. He would further rely on the

provision of Section 4 of Bombay Police Act, 1951, which says that

superintendence of police force throughout the State of Maharashtra vests in

and is exercisable by the State Government and any control, direction or

supervision exercisable by any officer over any member of the Police force

shall be exercisable subject to such superintendence. Mr. Desai would submit

that the Hon’ble Supreme Court in State of Bihar Vs. J.A.C. Saldhana24 case

has further expanded the meaning of term ‘superintendence’.

24. Mr. Desai would further submit that decision of Hon’ble

Supreme Court relied upon by learned Senior Advocate Mr. Salve for the

24 1980 AIR 326,


Petitioner on the interpretation of Section 306 of the Indian Penal Code, 1860

are post trial and conviction on the basis of evidence adduced. According to

him, at the stage of quashing FIR, the said decisions would not have any

application, more so, when the matter is still under investigation.

25. Relying upon the decision of Hon’ble Supreme Court in the case

of Praveen Pradhan Vs. State of Uttaranchal25, Mr. Desai pointed out that on

the basis of FIR in ‘Praveen Pradhan’, criminal proceedings were initiated.

During investigation, the investigating officer found the suicide note which

had been written by the deceased. It was alleged that the appellant was

responsible for his death. The Hon’ble Supreme Court in the facts of that

case refused to interfere with the order passed by the High Court declining to

quash the proceedings in exercise of power under Section 482 of Cr.P.C.

26. Mr. Desai would also rely upon the decision in the case of State

of Andhra Pradesh Vs. A.S. Peter26 to contend that the law does not mandate

taking prior permission of Magistrate for further investigation and Magistrate

has discretion to direct further investigation. In the present case having

intimated to the Magistrate that a further investigation is necessary to be

carried out, this would amount to sufficient compliance of Section 173 (8) of

Cr.P.C.

25 (2012) 9 SCC 734

26 Appeal (Crl) No. 1119 of 2004


27. Mr. Gupte, learned Senior Advocate appeared on behalf of the first

informant-victim would submit that the deceased left behind a note holding

the petitioner responsible for his death. He submits that as a result of nonpayment

of dues by the Petitioner, the informant lost two close family

members. Mr. Gupte would submit that grant of 'A' summary by Chief

Judicial Magistrate, Alibaug is per se illegal as informants were not heard as

is the mandatory requirement of law. This illegality, according to him, goes to

the root of the matter. Mr. Gupte would submit that the informant was not

aware of the grant of ‘A’ summary as she was not given notice nor heard. It is

through tweets that she came to know about the same.

28. He invited our attention to the Criminal Writ Petition No. 1543 of 2020

(Adnya Anvay Naik vs. State of Maharashtra) filed by the daughter of the

deceased which is on board today. He further submitted that the informant

was not intimated about filing of “A” summary or acceptance of said report

and after a few months from filing such “A” summary and acceptance of it

by the Magistrate. All this she came to know from some tweets. Thereafter,

the informant approached the State Government and its officials for redressal

of her grievance. Mr. Gupte pointed out that the informant approached the

superior authorities seeking redressal. Criminal Writ Petition-ASDB-LDVC

No. 33 of 2020 filed by the informant/daughter came to be


disposed of as withdrawn on 2nd June 2020 in view of fresh developments in

the matter. Representation was made by the informant on 13th June 2020 to

the Additional Director General of Police, Maharashtra State, CID, Pune

seeking justice.

29. Mr. Gupte would rely on the decision of the Hon’ble Supreme

Court in the case of Bhagwant Singh (supra) to contend that if the Magistrate

is not inclined to take cognizance of offence and issue process, the informant

must be given opportunity of being heard so that he can make his submission

to persuade the Magistrate to take cognizance of the offence and issue

process. According to him in Ajay Kumar Parmar Vs. State of Rajasthan27 the

Hon’ble Supreme Court has held that when the Magistrate decided not to

take cognizance of the case and to drop the proceeding against accused it is

mandatory to hear complainant or informant by issuing him notice. Mr.

Gupte would submit that before granting 'A' summary, neither was the

informant given any notice or was heard and thus the impugned order is in

violation of mandatory requirement of law. Mr. Gupte would urge that the

fundamental rights which the Petitioner claims has to be balanced with the

corresponding right of the victim to claim justice. According to him in a case

where 'A' summary is granted without even issuing notice to the applicant,

the Petitioner would not be justified in seeking relief on the premise that

27 (2012) 12 SCC 406


further investigation is being carried out without permission from the

Magistrate. Mr. Gupte would hasten to add that in the present case the

Magistrate has been intimated by the Investigating Officer and thereafter

further investigation is commenced and that itself is sufficient compliance of

section 173 (8) of Cr.P.C. He would submit that the informant and her

daughter have received threats on many occasions and for which complaint

was filed which is registered as N.C.

30. Heard the learned Counsel for the parties.

31. Though we are considering prayer in the Interim Application for

grant of bail and not hearing the main petition, for deciding this application it

may be necessary to reproduce the prayer clause (a) of the petition, seeking a

Writ of Habeas Corpus, which reads as under:

“(a) Issue a writ of habeas corpus and/or any other similar

writ, order and direction of like nature, directing the

Respondents to produce the Petitioner who has been illegally

arrested and wrongfully detained by the Respondent No. 2 in

relation to FIR, being C.R. No. 0059 of 2018, dated 5 May

2018, registered at Alibaug Police Station, Raigad, under

Sections 306 and 34 of the Indian Penal Code, 1860 despite a

closure report being filed.”

32. The averments made in the petition are in the context of illegal

detention of the petitioner which according to the Petitioner is without any

authority of law. The petitioner was arrested in the early hours of 4th

November, 2020. There is no dispute that as on the date of filing of the

petition, there was already an order of the jurisdictional Magistrate for

remand of the petitioner in custody. In the light of the law laid down by the

Hon'ble Supreme Court in the case of State of Maharashtra and others vs.

Tasneem Rizwan Siddiquee (supra), the question as to whether a Writ of

Habeas Corpus could be maintained in respect of a person, who is in police

custody pursuant to the remand order passed by the jurisdictional Magistrate

in connection with the offence under investigation, is no more res integra. A

profitable reference could also be made to the decisions in Saurabh Kumar

(supra); Col. B. Ramchandra Rao (supra); Ankit Mutha vs. Union of India

(supra).

33. Mr.Harish Salve, the learned Senior Advocate, submits that the

very same argument, that the petition for a Writ of Habeas Corpus was not

maintainable, was advanced in the case of Jagisha Arora vs. The State of

Uttar Pradesh & another28. However, the Supreme Court in the said case,

directed the petitioner’s husband therein to be immediately released on bail

on such conditions to the satisfaction of the jurisdictional Chief Judicial

Magistrate. Therefore, the learned Senior Advocate submits that in the present

case also, though the prayer for issuance of Writ of Habeas Corpus is not

28 (2019) 6 SCC 619

maintainable, the concerned Magistrate may be directed to release the

petitioner forthwith.

34. It is true that the Hon’ble Supreme Court directed an immediate

release of the husband of the petitioner therein. However, the said direction

was issued in exercise of power under Article 142 of the Constitution of

India; such power is not available with this Court. Therefore, the prayer of

the petitioner to be forthwith released, cannot be acceded to. In the facts of

Jagisha Arora (supra), it appears that the husband of the petitioner therein was

arrested pursuant to the initiation of proceedings under sections 500 and 505

of the Indian Penal Code read with section 67 of the Information Technology

Act, 2000. It appears that the proceedings were initiated for the posts/tweets

made by the husband of the petitioner therein. However, in the present case,

the petitioner is arraigned as an accused in Crime No.59 of 2018 for the

offences under section 306 of the Indian Penal Code, wherein the maximum

sentence provided, is 10 years imprisonment and shall also be liable to fine.

The offence is cognisable, non-bailable, triable by Court of Sessions and not compoundable.

35. In the recent judgment in the case of Serious Fraud Investigation

Office vs. Rahul Modi29, the Hon’ble Supreme Court in paragraphs 16 to 22

held thus:

29 (2019) 5 SCC 266


16. The basic facts in the present matter can be summed

up:-

16.1. The investigation was assigned to SFIO vide Order

dated 20.6.2018. This Order did stipulate in para 6 that the

Inspectors should complete their investigation and submit

their report to the Central Government within three

months.

16.2) The period of three months expired on

19.09.2018.

16.3) The proposal to arrest three accused persons

was placed before the Director, SFIO and after being

satisfied in terms of requirements of Section 212(8) of

2013 Act approval was granted by Director, SFIO on

10.12.2018.

16.4) After they were arrested on 10.12.2018, the

accused were produced before the Judicial Magistrate,

who by his order dated 11.12.2018 remanded them to

custody till 14.12.2018 and also directed that they be

produced before the Special Court on 14.12.2018.

16.5) On 13.12.2018 a proposal seeking extension of time

for completing investigation in respect of 57 cases

including the present case was preferred by SFIO.

16.6) On 14.12.2018 the Special Court, Gurugram

remanded the accused to custody till 18.12.2018.

16.7) On the same date i.e. on 14.12.2018 the proposal

for extension was accepted by the Central Government in

respect of the Group and extension was granted upto

30.06.2019.

16.8) On 17.12.2018 the present Writ Petitions were

preferred which came up for the first time before the High

Court on 18.12.2018.

16.9) On 18.12.2018 itself the accused were further

remanded to police custody till 21.12.2018.

16.10) On 20.12.2018 Writ Petitions were

entertained and the order which is presently under appeal

was passed.


16.11) Pursuant to said order, the original Writ

Petitioners were released on bail.

16.12) In the backdrop of these facts, the High

Court found that a case for interim relief was made out.

The principal issues which arise in the matter are whether

the High Court was right and justified in entertaining the

petition and in passing the Order under appeal?

17. For considering whether the writ petitioners were

entitled to any interim relief, two questions were framed by

the High Court in paragraph 15 of its Order. Before

considering the matter from the perspective of said two

questions, an issue which was stressed by the learned

Solicitor General may be addressed first. It was submitted

by him that the date with reference to which the legality of

detention can be challenged in a Habeas Corpus

proceeding is the date on which the return is filed in such

proceedings and not with reference to the initiation of the

proceedings. He relied upon the decision of the Federal

Court in Basanta Chandra Ghose vs. King Emperor, which

had concluded:

“… …If at any time before the Court directs the release of

the detenue, a valid order directing his detention is

produced, the Court cannot direct his release merely on the

ground that at some prior stage there was no valid cause

for detention…. …” Similar questions arose for

consideration in Naranjan Singh nathawan vs. State of

Punjab, Ram Narayan Singh vs. State of Delhi, A.K.

Gopalan vs. Union of India, Pranab Chatterjee vs. State of

Bihar, Talib Hussain vs. State of J & K., B.Ramchandra

Rao vs. State of Orissa & others. These decisions were

considered in Kanu Sanyal vs. District Magistrate,

Darjeeling & others, as under:

Re: Grounds A and B.

4. These two grounds relate exclusively to the legality of the

initial detention of the petitioner in the District Jail,

Darjeeling. We think it unnecessary to decide them. It is now

well settled that the earliest date with reference to which the

legality of detention challenged in a habeas corpus

proceeding may be examined is the date on which the

application for habeas corpus is made to the Court. This

Court speaking through Wanchoo, J., (as he then was) said in

A.K. Gopalan vs. Union of India :

5. “It is well settled that in dealing with the petition for

habeas corpus the Court is to see whether the detention on

the date on which the application is made to the Court is

legal, if nothing more has intervened between the date of the

application and the date of the hearing.” In two early

decisions of this Court, however, namely, Naranjan Singh v.

State of Punjab and Ram Narayan Singh v. State of Delhi a

slightly different view was expressed and that view was

reiterated by this Court in B.R. Rao v. State of Orissa where

it was said (at p. 259, para 7):

“in habeas corpus proceedings the Court is to have regard to

the legality or otherwise of the detention at the time of the

return and not with reference to the institution of the

proceedings”.

and yet in another decision of this Court in Talib Hussain v.

State of Jammu & Kashmir6 Mr Justice Dua, sitting as a

Single Judge, presumably in the vacation, observed that (at p.

121, para 6):

“6. … in habeas corpus proceedings the Court has to

consider the legality of the detention on the date of the

hearing.”

Of these three views taken by the Court at different times, the

second appears to be more in consonance with the law and

practice in England and may be taken as having received the

largest measure of approval in India, though the third view

also cannot be discarded as incorrect, because an inquiry

whether the detention is legal or not at the date of hearing of

the application for habeas corpus would be quite relevant, for

the simple reason that if on that date the detention is legal, the

Court cannot order release of the person detained by issuing a

writ of habeas corpus. But, for the purpose of the present

case, it is immaterial which of these three views is accepted

as correct, for it is clear that, whichever be the correct view,

the earliest date with reference to which the legality of

detention may be examined is the date of filing of the

application for habeas corpus and the Court is not, to quote

the words of Mr Justice Dua in B.R. Rao v. State of Orissa

“concerned with a date prior to the initiation of the

proceedings for a writ of habeas corpus”. Now the writ

petition in the present case was filed on January 6, 1973 and

on that date the petitioner was in detention in the Central Jail,

Visakhapatnam. The initial detention of the petitioner in the

District Jail, Darjeeling had come to an end long before the

date of the filing of the writ petition. It is, therefore,

unnecessary to examine the legality or otherwise of the

detention of the petitioner in the District Jail, Darjeeling. The

only question that calls for consideration is whether the

detention of the petitioner in the Central Jail, Visakhapatnam

is legal or not. Even if we assume that grounds A and B are

well founded and there was infirmity in the detention of the

petitioner in the District Jail, Darjeeling, that cannot

invalidate the subsequent detention of the petitioner in the

Central Jail, Visakhapatnam. See para 7 of the judgment of

this Court in B.R. Rao v. State of Orissa. The legality of the

detention of the petitioner in the Central Jail, Visakhapatnam

would have to be judged on its own merits. We, therefore,

consider it unnecessary to embark on a discussion of grounds

A and B and decline to decide them.”

19. The law is thus clear that “in Habeas Corpus

proceedings a Court is to have regard to the legality or

otherwise of the detention at the time of the return and not

with reference to the institution of the proceedings”. In Kanu

Sanyal the validity of the detention of the petitioner in District

Jail, Darjeeling was therefore not considered by this Court and

it was observed that the infirmity in the detention of the

petitioner therein in the District Jail, Darjeeling could not

invalidate subsequent detention of the petitioner in the Central

Jail, Vishakhapatnam.

20. At this stage we may also deal with three recent cases

decided by this Court:-

20.1) In Manubhai Ratilal Patel through Ushaben vs. State

of Gujarat and others 9 a Division bench of this Court

extensively considered earlier decisions in the point including

cases referred to above. It also dealt with an issue whether

Habeas Corpus petition could be entertained against an order

of remand passed by a Judicial Magistrate. The observations

of this Court in paragraphs 20 to 24 and para 31 were as under:

“20. After so stating, the Bench in Kanu Sanyal case opined

that for adjudication in the said case, it was immaterial which

of the three views was accepted as correct but eventually

referred to para 7 in B. Ramachandra Rao wherein the Court

had expressed the view in the following manner: (SCC p. 259)

“7. … in habeas corpus proceedings the court is to have

regard to the legality or otherwise of the detention at the time

of the return and not with reference to the institution of the

proceedings.”

Eventually, the Bench ruled thus: (Kanu Sanyal case, SCC p.

148, para 5)

“5. … The production of the petitioner before the Special

Judge, Visakhapatnam, could not, therefore, be said to be

illegal and his subsequent detention in the Central Jail,

Visakhapatnam, pursuant to the orders made by the Special

Judge, Visakhapatnam, pending trial must be held to be

valid. This Court pointed out in Col. B. Ramachandra Rao v.

State of Orissa (SCC p. 258, para 5) that a writ of habeas

corpus cannot be granted

‘5....where a person is committed to jail custody by a

competent court by an order which prima facie does not

appear to be without jurisdiction or wholly illegal’.”

21. The principle laid down in Kanu Sanyal, thus, is that any

infirmity in the detention of the petitioner at the initial stage

cannot invalidate the subsequent detention and the same has

to be judged on its own merits.

22. At this juncture, we may profitably refer to the

Constitution Bench decision in Sanjay Dutt v. State through

CBI, Bombay (II) 10 wherein it has been opined thus: (SCC

p. 442, para 48)

“48. … It is settled by Constitution Bench decisions that a

petition seeking the writ of habeas corpus on the ground

of absence of a valid order of remand or detention of the

accused, has to be dismissed, if on the date of return of

the rule, the custody or detention is on the basis of a valid

order.”

23. Keeping in view the aforesaid concepts with regard to

the writ of habeas corpus, especially pertaining to an order

passed by the learned Magistrate at the time of production

of the accused, it is necessary to advert to the schematic

postulates under the Code relating to remand. There are

two provisions in the Code which provide for remand i.e.

Sections 167 and 309. The Magistrate has the authority

under Sections 167 (2) of the Code to direct for detention

of 10 (1994) 5 SCC 410 : 1994 SCC (Cri) 1433 the

accused in such custody i.e. police or judicial, if he thinks

that further detention is necessary.

24. The act of directing remand of an accused is

fundamentally a judicial function. The Magistrate does not

act in executive capacity while ordering the detention of

an accused. While exercising this judicial act, it is

obligatory on the part of the Magistrate to satisfy himself

whether the materials placed before him justify such a

remand or, to put it differently, whether there exist

reasonable grounds to commit the accused to custody and

extend his remand. The purpose of remand as postulated

under Section 167 is that investigation cannot be

completed within 24 hours. It enables the Magistrate to

see that the remand is really necessary. This requires the

investigating agency to send the case diary along with the

remand report so that the Magistrate can appreciate the

factual scenario and apply his mind whether there is a

warrant for police remand or justification for judicial

remand or there is no need for any remand at all. It is

obligatory on the part of the Magistrate to apply his mind

and not to pass an order of remand automatically or in a

mechanical manner.

31. Coming to the case at hand, it is evincible that the

arrest had taken place a day prior to the passing of the

order of stay. It is also manifest that the order of remand

was passed by the learned Magistrate after considering the

allegations in the FIR but not in a routine or mechanical

manner. It has to be borne in mind that the effect of the

order of the High Court regarding stay of investigation

could only have a bearing on the action of the investigating

agency. The order of remand which is a judicial act, as we

perceive, does not suffer from any infirmity. The only

ground that was highlighted before the High Court as well

as before this Court is that once there is stay of

investigation, the order of remand is sensitively susceptible

and, therefore, as a logical corollary, the detention is

unsustainable. It is worthy to note that the investigation

had already commenced and as a resultant consequence,

the accused was arrested. Thus, we are disposed to think

that the order of remand cannot be regarded as untenable

in law. It is well-accepted principle that a writ of habeas

corpus is not to be entertained when a person is committed

to judicial custody or police custody by the competent

court by an order which prima facie does not appear to be

without jurisdiction or passed in an absolutely mechanical

manner or wholly illegal. As has been stated in B.

Ramachandra Rao and Kanu Sanyal, the court is required

to scrutinise the legality or otherwise of the order of

detention which has been passed. Unless the court is

satisfied that a person has been committed to jail custody

by virtue of an order that suffers from the vice of lack of

jurisdiction or absolute illegality, a writ of habeas corpus

cannot be granted. It is apposite to note that the

investigation, as has been dealt with in various authorities

of this Court, is neither an inquiry nor trial. It is within the

exclusive domain of the police to investigate and is

independent of any control by the Magistrate. The sphere

of activity is clear cut and well demarcated. Thus viewed,

we do not perceive any error in the order passed by the

High Court refusing to grant a writ of habeas corpus as the

detention by virtue of the judicial order passed by the

Magistrate remanding the accused to custody is valid in

law.”

20.2) Saurabh Kumar vs. Jailor, Koneila Jail and

another the issue was dealt with in para 13 of the leading

Judgment as under:-

13. It is clear from the said narration of facts that the

petitioner is in judicial custody by virtue of an order

passed by the Judicial Magistrate. The same is further

ensured from the original record which this Court has, by

order dated 9-4-2014, called for from the Court of the

Additional Chief Judicial Magistrate, Dalsingsarai, District

Samastipur, Bihar. Hence, the contention of the learned

counsel for the petitioner that there was illegal detention

without any case is incorrect. Therefore, the relief sought

for by the petitioner cannot be granted. Even though there

are several other issues raised in the writ petition, in view

11 (2014) 13 SCC 436 of the facts narrated above, there is

no need for us to go into those issues. However, the

petitioner is at liberty to make an application for his

release in Criminal Case No. 129 of 2013 pending before

the Court of the learned Additional Chief Judicial

Magistrate, Dalsingsarai.” Thakur, J. (as the learned Chief

Justice then was) who agreed with the leading Judgment

authored by Ramana, J., also dealt with the matter in

paragraph 22 of his concurring opinion as under:

“22. The only question with which we are concerned within

the above backdrop is whether the petitioner can be said to

be in the unlawful custody. Our answer to that question is

in the negative. The record which we have carefully

perused shows that the petitioner is an accused facing

prosecution for the offences, cognizance whereof has

already been taken by the competent court. He is presently

in custody pursuant to the order of remand made by the

said Court. A writ of habeas corpus is, in the circumstances,

totally misplaced. Having said that, we are of the view that

the petitioner could and indeed ought to have filed an

application for grant of bail which prayer could be allowed

by the court below, having regard to the nature of the

offences allegedly committed by the petitioner and the

attendant circumstances. The petitioner has for whatever

reasons chosen not to do so. He, instead, has been advised

to file the present petition in this Court which is no

substitute for his enlargement from custody.”

20.3) A Bench of three learned Judges of this Court in

State of Maharashtra and Others vs. Tasneem Rizwan

Siddiquee concluded as under:-

“10. The question as to whether a writ of habeas corpus

could be maintained in respect of a person who is in police


12 (2018) 9 SCC 745 custody pursuant to a remand order

passed by the jurisdictional Magistrate in connection with

the offence under investigation, this issue has been

considered in Saurabh Kumar v. Jailor Koneila Jail and

Manubhai Ratilal Patel v. State of Gujarat. It is no more

res integra. In the present case, admittedly, when the writ

petition for issuance of a writ of habeas corpus was filed by

the respondent on 18-3-2018/19-3-2018 and decided by the

High Court on 21-3-2018 her husband Rizwan Alam

Siddiquee was in police custody pursuant to an order

passed by the Magistrate granting his police custody in

connection with FIR No. I-31 vide order dated 17-3-2018

and which police remand was to enure till 23-3-2018.

Further, without challenging the stated order of the

Magistrate, a writ petition was filed limited to the relief of

habeas corpus. In that view of the matter, it was not a case

of continued illegal detention but the incumbent was in

judicial custody by virtue of an order passed by the

jurisdictional Magistrate, which was in force, granting

police remand during investigation of a criminal case.

Resultantly, no writ of habeas corpus could be issued.

11. Reverting to the prayer for expunging the scathing

observations made in the impugned judgment, in particular

paras 4-6, reproduced earlier, it is submitted that the said

observations were wholly unwarranted as the Deputy

Commissioner of Police concerned who was present in

Court, could not have given concession to release Rizwan

Alam Siddiquee in the teeth of a judicial order passed by the

Magistrate directing police remand until 23-3-

2018.Moreover, it is evident that the High Court proceeded

to make observations without giving any opportunity,

whatsoever, to the police officials concerned to explain the

factual position on affidavit. The writ petition was filed on

18-3-2018/19-3-2018 and was moved on 20-3-20182 when

the Court called upon the advocate for the appellants to

produce the record on the next day i.e. 21-3-2018. The

impugned order came to be passed on 21-3-20181,

notwithstanding the judicial order of remand operating till

23-3-2018. The High Court, in our opinion, should not have

taken umbrage to the submission made on behalf of the

Deputy Commissioner of Police that the respondent’s


husband could be released if so directed by the Court. As

aforesaid, the DCP has had no other option but to make

such a submission. For, he could not have voluntarily

released the accused who was in police custody pursuant to

a judicial order in force. The High Court ought not to have

made scathing observations even against the investigating

officer without giving him an opportunity to offer his

explanation on affidavit.

12. Suffice it to observe that since no writ of habeas corpus

could be issued in the fact situation of the present case, the

High Court should have been loath to enter upon the merits

of the arrest in the absence of any challenge to the judicial

order passed by the Magistrate granting police custody till

23-3-2018 and more particularly for reasons mentioned in

that order of the Magistrate. In a somewhat similar

situation, this Court in State represented by Inspector of

Police and others v. N.M.T. Joy Immaculate 13 deprecated

passing of disparaging and strong remarks by the High

Court against the investigating officer and about the

investigation done by them. Accordingly, we have no

hesitation in expunging the observations made in paras 4 to

6 of the impugned judgment against the police officials

concerned in the facts of the present case.”

21) The act of directing remand of an accused is thus

held to be a judicial function and the challenge to the order

of remand is not to be entertained in a habeas corpus

petition. The first question posed by the High Court, thus,

stands answered. In the present case, as on the date when the

matter was considered by the High Court and the Order was

passed by it, not only were there orders of remand passed by

the Judicial Magistrate 13 (2004) 5 SCC 729 as well as the

Special Court, Gurugram but there was also an order of

extension passed by the Central Government on 14.12.2018.

The legality, validity and correctness of the order or remand

could have been challenged by the original Writ Petitioners

by filing appropriate proceedings. However, they did not

raise such challenge before the competent Appellate or

Revisional Forum. The orders of remand passed by the

Judicial Magistrate and the Special Court, Gurugram had

dealt with merits of the matter and whether continued

detention of the accused was justified or not. After going

into the relevant issues on merits, the accused were

remanded to further police custody. These orders were not

put in challenge before the High Court. It was, therefore, not

open to the High Court to entertain challenge with regard to

correctness of those orders. The High Court, however,

considered the matter from the standpoint whether the initial

Order of arrest itself was valid or not and found that such

legality could not be sanctified by subsequent Order of

remand. Principally, the issue which was raised before the

High Court was whether the arrest could be effected after

period of investigation, as stipulated in said order dated

20.06.2018 had come to an end. The supplementary issue

was the effect of extension of time as granted on 14.12.2018.

It is true that the arrest was effected when the period had

expired but by the time the High Court entertained the

petition, there was as order of extension passed by the

Central Government on 14.12.2018. Additionally, there were

judicial orders passed by the Judicial Magistrate as well as

the Special Court, Gurugram, remanding the accused to

custody. If we go purely by the law laid down by this Court

with regard to exercise of jurisdiction in respect of Habeas

Corpus petition, the High Court was not justified in

entertaining the petition and passing the Order.

22. We must, however, deal with the submission advanced on

behalf of the original Writ Petitioners that the relief as regards

Habeas Corpus was a secondary prayer while the principal

submissions were with regard to the first three prayers in the

petition. It was submitted that with the expiry of period, the

entire mandate came to an end and as such, there could be no

arrest and that illegality in that behalf would continue

regardless whether there was a subsequent order of extension.

In the submission of the learned counsel for the Writ

Petitioner such an extension could not cure the inherent

defect and as such, the High Court was justified in

entertaining the petition. We may deal with this issue after

considering the second question posed by the High Court in

said paragraph 15.


36. In the facts of Serious Fraud Investigation Office case (supra),

the High Court released the original petitioners on bail while exercising writ

jurisdiction. The hon’ble Supreme Court allowed the appeal filed by the

appellant therein i.e., Serious Fraud Investigation Office and original writ

petitioners were directed to surrender before the Special Court.

37. Be that as it may, the learned Senior Advocate for the petitioner

would submit that he would not be pressing prayer clause (a).

38. Prayer clause (b) of the petition reads thus:

(b) Issue a writ of mandamus and/or any other

writ, order and direction of like nature, quashing the

FIR, being C.R. No. 0059 of 2018, dated 5 May 2018,

registered at Alibaug Police Station, Raigad, under

Sections 306 and 34 of the Indian Penal Code, 1860.

In relation to relief claimed in terms of prayer clause (b), there is

consensus amongst the learned Senior Advocate appearing for all the parties

that the main petition can be heard on the next date after pleadings are

completed and thus said prayer can be considered. We have posted the writ

petition for hearing on 10.12.2020.

39. The petitioner by filing the present application i.e., Interim

Application (Stamp) No.4278 of 2020, has prayed for the following reliefs

pending decision in the Writ Petition:


“(a) Pending the hearing and disposal of the captioned

writ petition, this Hon’ble Court be pleased to grant

bail to the Petitioner in FIR No. 59 of 2018 and direct

the Respondents and/or each of them to immediately

release the Petitioner from illegal detention and

wrongful custody and/or arrest by the Respondents in

view of detailed submissions made herein above, to

meet the ends of justice.

(b) Pending the hearing and disposal of the

captioned writ petition, this Hon’ble Court be pleased

to stay all further proceedings, including the

investigation in FIR No. 59 of 2018, with respect to

the Petitioner.”

40. The learned Senior Advocate for the petitioner has prayed that

the petitioner be released on bail during the pendency of the present petition

seeking quashing of the First Information Report No.59 of 2018.

41. The issue as to the exercise of jurisdiction by the High Court in a

proceeding relating to quashing of First Information Report has been

authoritatively dealt with in the case of State of Telangana vs. Habib Abdullah

Jeelani & others30. Their Lordships in paragraph 12 clarified the parameters

as to the circumstances and situations where the Court’s inherent power can

be exercised. In paragraphs 13 and 14 which have a bearing on the

controversy reads thus:

“13. There can be no dispute over the proposition that

30 (2017) 2 SCC 779

inherent power in a matter of quashment of FIR has to be

exercised sparingly and with caution and when and only

when such exercise is justified by the test specifically laid

down in the provision itself. There is no denial of the fact

that the power under Section 482 CrPC is very wide but it

needs no special emphasis to state that conferment of wide

power requires the court to be more cautious. It casts an

onerous and more diligent duty on the Court.

14. In this regard, it would be seemly to reproduce a passage

from Kurukshetra University (supra) wherein Chandrachud,

J. (as His Lordship then was) opined thus:-

“2. It surprises us in the extreme that the High Court thought

that in the exercise of its inherent powers under Section 482

of the Code of Criminal Procedure, it could quash a first

information report. The police had not even commenced

investigation into the complaint filed by the Warden of the

University and no proceeding at all was pending in any court

in pursuance of the FIR. It ought to be realised that inherent

powers do not confer an arbitrary jurisdiction on the High

Court to act according to whim or caprice. That statutory

power has to be exercised sparingly, with circumspection

and in the rarest of rare cases.”

(emphasis supplied)

42. Further in para 20, the Hon'ble Supreme Court referred to the

decision in Hema Mishra Vs. State of U.P.31 and in paragraphs 23 to 25 of

the said decision, their Lordships have held thus:

“23. We have referred to the authority in Hema Mishra

(supra) as that specifically deals with the case that came from

the State of Uttar Pradesh where Section 482 CrPC has been

deleted. It has concurred with the view expressed in Lal

Kamlendra Pratap Singh (supra). The said decision, needless

to say, has to be read in the context of State of Uttar Pradesh.

We do not intend to elaborate the said principle as that is not

necessary in this case. What needs to be stated here is that

31 (2014) 4 SCC 453

the States where Section 482 CrPC has not been deleted and

kept on the statute book, the High Court should be well

advised that while entertaining petitions under Article 226 of

the Constitution or Section 482 CrPC, exercise judicial

restraint. We may hasten to clarify that the Court, if it thinks

fit, regard being had to the parameters of quashing and the

self-restraint imposed by law, has the jurisdiction to quash

the investigation and may pass appropriate interim orders as

thought apposite in law, but it is absolutely inconceivable

and unthinkable to pass an order of the present nature while

declining to interfere or expressing opinion that it is not

appropriate to stay the investigation. This kind of order is

really inappropriate and unseemly. It has no sanction in law.

The Courts should oust and obstruct unscrupulous litigants

from invoking the inherent jurisdiction of the Court on the

drop of a hat to file an application for quashing of launching

an FIR or investigation and then seek relief by an interim

order. It is the obligation of the court to keep such

unprincipled and unethical litigants at bay.

24. It has come to the notice of the Court that in certain

cases, the High Courts, while dismissing the application

under Section 482 CrPC are passing orders that if the

accused-petitioner surrenders before the trial magistrate, he

shall be admitted to bail on such terms and conditions as

deemed fit and appropriate to be imposed by the concerned

Magistrate. Sometimes it is noticed that in a case where

sessions trial is warranted, directions are issued that on

surrendering before the concerned trial judge, the accused

shall be enlarged on bail. Such directions would not

commend acceptance in light of the ratio in Rashmi Rekha

Thatoi (supra), Gurbaksh Singh Sibbia (supra), etc., for they

neither come within the sweep of Article 226 of the

Constitution of India nor Section 482 CrPC nor Section 438

CrPC. This Court in Ranjit Singh (supra) had observed that

the sagacious saying “a stitch in time saves nine” may be an

apposite reminder and this Court also painfully so stated.

25. Having reminded the same, presently we can only say

that the types of orders like the present one, are totally

unsustainable, for it is contrary to the aforesaid settled

principles and judicial precedents. It is intellectual truancy to

avoid the precedents and issue directions which are not in

consonance with law. It is the duty of a Judge to sustain the

judicial balance and not to think of an order which can cause

trauma to the process of adjudication. It should be borne in

mind that the culture of adjudication is stabilized when

intellectual discipline is maintained and further when such

discipline constantly keeps guard on the mind.”

43. No doubt, regard being had to the parameters of quashing and

the self-restraint imposed by law, this court has jurisdiction to quash the

investigation and pass appropriate interim orders as thought apposite in law.

However, the powers are to be exercised sparingly and that too, in rare and

appropriate cases and in extreme circumstances to prevent abuse of process

of law.

44. In State of Telangana vs. Habib Abdullah Jeelani & others

(supra), their Lordships have observed that the Courts have to ensure such a

power under Article 226 of the Constitution of India is not to be exercised

liberally so as to convert it into section 438 of Cr.P.C. proceedings.

45. The principle stated therein will equally apply to the exercise of

this Court’s power under Article 226 of the Constitution of India and section

482 of the Code of Criminal Procedure while considering the applications for

bail since the petitioner is already in Judicial custody. The legislature has

provided specific remedy under Section 439 Cr.P.C. for applying for regular

bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature

of seeking regular bail in a petition filed under Article 226 of the Constitution

of India read with section 482 of Code of Criminal Procedure.

46. Mr. Amit Desai, learned Senior Advocate appearing for the

State, submitted that an application for bail was filed before the learned

Magistrate which the petitioner chose to withdraw. However, he submitted

that in the event an application is filed before the appropriate Court under

section 439 of Code of Criminal Procedure for regular bail, the State would

not delay the hearing of the application and would cooperate in the

expeditious disposal of the same.

47. It is brought to our notice that the order of Remand passed by

the Chief Judicial Magistrate is challenged in Revision before the Sessions

Court by the State and the same is pending. Though the Senior Advocate for

the Petitioner made submissions in the context of the remand order, however,

as the issue is subjudiced before the Revisional Court, we think it appropriate

not to refer to the said order.

48. Let us now consider the submissions of the learned Senior

Advocate for the petitioner that the Investigating Officer is not justified in reinvestigating the offence in which the jurisdictional Magistrate has already accepted the “A” summary.

49. Reference to some of the provisions of the Code would be

necessary in the context of the contention of the learned Senior Advocate

appearing for the petitioner. Before we deal with the relevant provisions, at

the cost of repetition, it would be necessary to mention that “A” summary was

granted by the jurisdictional Magistrate on 16.4.2019. The said order reads

thus:

:ORDER:

1. The report submitted by DYSP is accepted.

2. “A” Summary as prayed for is granted.”

50. The Hon'ble Supreme Court in Bhagwant Singh (supra) and

Gangadhar (supra) and in the case of State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC 383

has held that when the Magistrate is not inclined to take cognizance of the

offence and issue process, the informant must be given an opportunity of being

heard so that he can make his submissions to persuade the Magistrate to take

cognizance of the offence and issue process. In the facts of the case in hand,

admittedly, the informant was neither given any notice nor heard when the “A”

summary was granted. Even the aforesaid order was not communicated to the

first informant. The victim i.e. first informant, when became aware about the “A” summary, though some tweets as submitted by learned Senior Advocate Mr. Gupte, requested the State Government and Superior officer of police that the case should be properly and thoroughly investigated. Criminal Writ Petition-ASDB-LDVC No.33 of 2020 was filed in this Court by the daughter of the deceased – Adnya Anvay Naik (First Informant). The said petition was

allowed to be withdrawn with liberty as there were fresh developments in the matter.

51. A detailed representation was made to the Additional Director

General of Police, Maharashtra State CID on 13th June, 2020 by Smt.Akshata

Naik, widow of the deceased. The issue was raised in the State Assembly. On

the instructions of superior officers of the Investigating Officer, the local

Crime Investigation Branch, Alibaug filed a report before the jurisdictional

Magistrate for conducting further investigation of the said offence and

accordingly, intimated to the jurisdictional Magistrate that further investigation

of the offence under section 173(8) of the Code is being carried out. The

jurisdictional Magistrate recorded the endorsement as “seen and filed”. In this

context, it would be relevant to refer to section 173(8) of the Code of Criminal

Procedure, which reads thus:

“SECTION 173 (8) CRPC

(8) Nothing in this section shall be deemed to preclude

further investigation in respect of an offence after a

report under sub- section (2) has been forwarded to the

Magistrate and, where upon such investigation, the

officer in charge of the police station obtains further

evidence, oral or documentary, he shall forward to the

Magistrate a further report or reports regarding such

evidence in the form prescribed; and the provisions of

sub- sections (2) to (6) shall, as far as may be, apply in

relation to such report or reports as they apply in

relation to a report forwarded under sub- section (2).”

52. We may also refer to sections 3 and 4 of the Bombay Police Act,

1951, which reads thus:

“3. One Police Force for the whole of the State of

Maharashtra.

There shall be one Police Force for the whole of the

State of Maharashtra and such Police Force shall

include every Police officer referred to in clause (6) of

section 2:

Provided that, the members of the Police Forces

constituted under any of the Acts mentioned in Schedule

I, immediately before the coming into force of this Act in

the relevant part of the State shall be deemed to be the

members of the said Police Force .

4. Superintendence of Police Force to vest in the

State Government. The Superintendence of the Police

Force throughout the State of Maharashtra vests in and is

exercisable by the State Government and any control,

direction or supervision exercisable by any officer over

any member of the Police Force shall be exercisable

subject to such superintendence. (emphasis supplied)

53. Section 36 of the Code of Criminal Procedure to which Mr.

Desai refers to provides as under:


“36. Powers of superior officers of police. Police officers

superior in rank to an officer in charge of a police station

may exercise the same powers, throughout the local area

to which they are appointed, as may be exercised by such

officer within the limits of his station.”

54. From the above provisions, it would thus be seen that exercise of

supervisory powers of superintendence of the police force throughout the

State of Maharashtra vests and is exercisable by the State Government and

any control, direction exercisable by any officer or any member of the police

force shall be subject to such superintendence. The State Government,

therefore, in exercise of its powers directed the local Crime Investigation

Branch, Raigad – Alibag to conduct further investigation of the said offence.

Though the learned Senior Advocate for the petitioner has pointed out that

the State Government has issued directions for reinvestigating the matter,

which, according to him, is not permissible, however, we find that when

report was submitted before the jurisdictional Magistrate, the concerned

Investigating Officer has correctly understood it to mean a further

investigation and accordingly made the submission. The power of

superintendence has been explained by the hon'ble Supreme Court in the case

of State of Bihar vs. J.A.C. Saldanha. Paragraph 17 of the said case, which is

relevant, reads thus:


“17. The High Court construed the expression

'superintendence' in s. 3 of the Act to mean 'general supervision

of the management of the police department and does not vest

the State Government with authority to decide what the police

alone is authorised to decide'. There is nothing in the Act to

indicate such a narrow construction of the word

'superintendence'. Nothing was pointed out to us to put a

narrow construction on this general power of superintendence

conferred under the Act on the State Government and there is

no justification for limiting the broad spectrum of power

comprehended in power of superintendence. Accordingly

superintendence would comprehend the power to direct further

investigation if the circumstances so warrant and there is

nothing in the Code providing to the contrary so as to limit or

fetter this power. Sub-s. (8) of s. 173 was pressed into service

to show that the power of further investigation after the

submission of a report under s. 173(2) would be with the

officer in charge of a police station. Sub-s. (8) of s. 173 is not

the source of power of the State Government to direct further

investigation. Section 173(8) enables an officer in charge of a

police station to carry on further investigation even after a

report under s. 173(2) is submitted to Court. But if State

Government has otherwise power to direct further investigation

it is neither curtailed, limited nor denied by s. 173(8), more so,

when the State Government directs an officer superior in rank

to an officer in charge of police station thereby enjoying all

powers of an officer in charge of a police station to further

investigate the case. Such a situation would be covered by the

combined reading of s. 173(8) with s. 36 of the Code. Such

power is claimed as flowing from the power of

superintendence over police to direct a police officer to do or

not to do a certain thing because at the stage of investigation

the power is enjoyed as executive power untrammeled by the

judiciary. It was incidentally submitted that it is an undisputed

dictum of law that when a statute requires a thing to be done in

a certain manner it shall be done in that manner alone and the

Court would not expect its being done in some other manner

(see State of Gujarat v. Shantilal Mangaldas & Ors.

Expounding the submission it was stated that sub-s. (8) of s.

173 clearly indicates the power of further investigation after

submission of a report and that power is conferred on the

officer in charge of a police station only and, therefore, the

State Government was incompetent to direct further

investigation. It was further contended that in view of the

provision contained in s. 173(8) it would not be open to the

Court to so interpret the word 'superintendence' in s. 3 of the

Police Act as to empower the State Government to direct

investigation being done by some one other than the statutory

authority envisaged by s. 173(8) because such an interpretation

would derogate from the principle that where a thing is

required by a statute to be done in a particular way it shall be

deemed to have prohibited that thing being done in any other

way. In Ex-parte Stephen's, the principle is stated that if a

statute directs a thing to be done in a certain way that thing

shall not, even if there be no negative words, be done in any

other way. Subba Rao, J. in Patna Improvement Trust v. Smt.

Lakshmi Devi & Ors., spelt out the combined effect of the

aforementioned principles thus:

"A general Act must yield to a special Act dealing with a

specific subject-matter and that if an Act directs a thing to be

done in a particular way, it shall be deemed to have prohibited

the doing of that thing in any other way".

55. Thus, there is no manner of doubt in our minds that the State

Government can always direct a further investigation to the concerned policeofficers, as done in the present case.

 56. Insofar as the provision regarding grant of “A” summary is

concerned, the procedure thereof is mentioned under Rule 219 of the

Bombay Police Manual, 1959. Rule 219, dealing with final reports, more

particularly, clause (3) reads thus:


“RULE 219 (3) OF BOMBAY POLICE MANUAL

(3) The final report should be written up carefully by the officers incharge

of the Police Station personally and should be accompanied by

all the case papers numbered and indexed methodically. If the accused

has been released on bail, the Magistrate should be requested to cancel

the bail bond. He should also be requested to pass orders regarding the

disposal of property attached, unless any of the articles, e.g., blood

stained clothes, are required for further use in true but undetected

cases. A request should also be made to the Magistrate to classify the

case and to issue an appropriate summary of his order, viz:-

“A’ True, undetected (where there is no clue whatsoever about the

culprits or property or where the accused in known but there is no

evidence to justify his being sent up to the Magistrate (for trial).

“B” Maliciously false.

“C” Neither true nor false, e.g., due to mistake ot fact or being of a

civil nature.

“Non-cognizable” Police investigation reveals commission of only

non-cognizable offence.”

(emphasis supplied)

57. Reading of clause (3) would indicate that “A” summary is

granted in a case where the offence is committed but the same is undetected,

in that, where there is no clue whatsoever about the culprits or property or

where the accused is known but there is no evidence to justify the same for

being sent to the Magistrate (trial). The jurisdictional Magistrate has

classified the case and issued “A” summary in this case. Consequent upon

receiving instructions pursuant to the complaint made by the victim to the

superiors, the local Crime Branch intimated the jurisdictional Magistrate that

they want to the carry out further investigation in the offence.


58. The intimation thereon was given to the Magistrate who had

made an endorsement of “seen and file”. Not only that but even when the

application was made by the Investigating Officer for recording the

statements under section 164 of the Code of Criminal Procedure, the same

was recorded by the Magistrate. Their Lordships in the case of State of

Andhra Pradesh vs. A.S. Peter (supra) have in the context of section 173 of

Code of Criminal Procedure held that the law does not mandate taking prior

permission of Magistrate for further investigation. Their Lordships further

held that carrying out further investigation even after filing of chargesheet, is

a statutory right of the police. A distinction also exists between further

investigation and reinvestigation. It is observed that whereas reinvestigation

without prior permission is necessarily forbidden, further investigation is not.

59. We find that before carrying out the said investigation, the

Magistrate was intimated about the further investigation. Thereafter, even

the statements are recorded under section 164 of the Code of Criminal

Procedure after obtaining permission from Chief Judicial Magistrate. In our

opinion, the further investigation cannot be termed as illegal and without

seeking permission of the Magistrate. The same is in consonance with the

power conferred by section 173 (8) of Code of Criminal Procedure, which is

extracted hereinabove. In the facts of the present case two family members of the informant died. Allegations are made in the FIR against three accused

involving present petitioner. She filed the representation to the State

Government and police officers for redressal of her grievance.

60. At this juncture, it would be pertinent to consider the decision of

the Hon'ble Supreme Court in the case of Vinubhai Haribhai Malaviya & another vs. State of Gujarat (supra). In paragraph 49 of the said judgement,

their Lordships have observed thus:

“49. There is no good reason given by the Court in these

decisions as to why a Magistrate’s powers to order further

investigation would suddenly cease upon process being issued,

and an accused appearing before the Magistrate, while

concomitantly, the power of the police to further investigate the

offence continues right till the stage the trial commences. Such a

view would not accord with the earlier judgments of this Court,

in particular, Sakiri (supra), Samaj Parivartan Samudaya

(supra), Vinay Tyagi (supra), and Hardeep Singh (supra);

Hardeep Singh (supra) having clearly held that a criminal trial

does not begin after cognizance is taken, but only after charges

are framed. What is not given any importance at all in the recent

judgments of this Court is Article 21 of the Constitution and the

fact that the Article demands no less than a fair and just

investigation. To say that a fair and just investigation would lead

to the conclusion that the police retain the power, subject, of

course, to the Magistrate’s nod under Section 173(8) to further

investigate an offence till charges are framed, but that the

supervisory jurisdiction of the Magistrate suddenly ceases midway

through the pre-trial proceedings, would amount to a

travesty of justice, as certain cases may cry out for further

investigation so that an innocent person is not wrongly

arraigned as an accused or that a prima facie guilty person is not

so left out. There is no warrant for such a narrow and restrictive

view of the powers of the Magistrate, particularly when such

powers are traceable to Section 156(3) read with Section 156(1),


Section 2(h), and Section 173(8) of the CrPC, as has been

noticed hereinabove, and would be available at all stages of the

progress of a criminal case before the trial actually commences.

It would also be in the interest of justice that this power be

exercised suo motu by the Magistrate himself, depending on the

facts of each case. Whether further investigation should or

should not be ordered is within the discretion of the learned

Magistrate who will exercise such discretion on the facts of

each case and in accordance with law. If, for example, fresh

facts come to light which would lead to inculpating or

exculpating certain persons, arriving at the truth and doing

substantial justice in a criminal case are more important than

avoiding further delay being caused in concluding the criminal

proceeding, as was held in Hasanbhai Valibhai Qureshi (supra).

Therefore, to the extent that the judgments in Amrutbhai

Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan

Rout (supra) have held to the contrary, they stand overruled.

Needless to add, Randhir Singh Rana v. State (Delhi

Administration) (1997) 1 SCC 361 and Reeta Nag v. State of

West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.”

61. In Vinubhai Haribhai Malaviya (supra), their Lordships were

considering the fact situation as to whether post-cognisance, the Magistrate is

denuded of his powers of further investigation. In the present case, post

filing of “A” summary, an intimation was given to the Magistrate by the

Investigating Officer that they are carrying out further investigation

whereafter, even the statements under section 164 of the Code of Criminal

Procedure are recorded by the concerned Magistrate pursuant to the

directions issued by the Chief Judicial Magistrate.

62. It is rightly submitted by Mr.Desai that the judgments cited by

the petitioner deal with the power of the Court to order further investigation,

State’s power to order further investigation,

depending upon the nature of summary i.e., “A”, “B” or “C”.

63. Merely because the Magistrate has accepted the “A” summary

submitted by the Investigating Officer, that would not mean and preclude the

concerned Investigating Officer to invoke the provisions of section 173(8) of

Code of Criminal Procedure to commence further investigation after giving

intimation to the jurisdictional Magistrate.

64. The fact that the Magistrate did not give notice and opportunity

to the first informant to file a protest petition before accepting the report, goes

to the root of the matter. Therefore, the continuous persuasion of the State

Government by the informant for redressal of her grievance since her two

family members had committed suicide, and in the aforesaid background, the

concerned Investigating Officer, after intimating the Magistrate, commences

the further investigation, cannot be said to be irregular or illegal by any stretch

of imagination. The victim’s rights are equally important like the rights of the

accused. We cannot accept the contention of the petitioner that there cannot

be further investigation when the order passed by the Magistrate accepting the

“A” summary was without notice and without giving an opportunity to the

informant for filing the protest petition.


65. It is relevant to mention that the informant has also filed a

petition making serious allegations against the Investigating Officer, who

investigated in Crime No.59 of 2018 at the relevant time and filed “A”

summary before the jurisdictional Magistrate without informing and notice to

the informant. In the said petition, this Court has issued notice to the

respondents. It is alleged by the informant that the first time she came to know

about it from ‘Twitter’ about filing “A” summary report by the concerned

police officer before the concerned jurisdictional Magistrate and thereafter, she

approached various State authorities for redressal of her grievance. As already

observed, the informant’s prayer for further investigation could not have been

brushed aside by the respondent State and its officials, when as per the

allegations in the FIR, two of her family members committed suicide due to the

alleged acts of the accused. As rightly submitted by Mr.Gupte, the learned

Senior Counsel appearing for the first informant, relying upon the exposition of

law in the case of Bhagwant Singh (supra) and Gangadhar (supra) that the

notice to the victim and opportunity for filing the protest petition was necessary

before accepting “A” summary report by the jurisdictional Magistrate. It

would be gainful to reproduce hereinbelow paragraphs 4 and 5 of the judgment

in the case of Bhagwant Singh (supra):

“4. Now, when the report forwarded by the officer-in charge

of a police station to the Magistrate under sub-section (2)(i) of


Section 173 comes up for consideration by the Magistrate, one

of two different situations may arise. The report may conclude

that an offence appears to have been committed by a particular

person or persons and in such a case, the Magistrate may do

one of three things: (1) he may accept the report and take

cognizance of the offence and issue process or (2) he may

disagree with the report and drop the proceeding or (3) he may

direct further investigation under sub-section (3) of Section

156 and require the police to make a further report. The report

may on the other hand state that, in the opinion of the police,

no offence appears to have been committed and where such a

report has been made, the Magistrate again has an option to

adopt one of three courses: (1) he may accept the report and

drop the proceeding or (2) he may disagree with the report and

taking the view that there is sufficient ground for proceeding

further, take cognizance of the offence and issue process or (3)

he may direct further investigation to be made by the police

under sub-section (3) of Section 156. Where, in either of these

two situations, the Magistrate decides to take cognizance of the

offence and to issue process, the informant is not prejudicially

affected nor is the injured or in case of death, any relative of

the deceased aggrieved, because cognizance of the offence is

taken by the Magistrate and it is decided by the Magistrate that

the case shall proceed. But if the Magistrate decides that there

is no sufficient ground for proceeding further and drops the

proceeding or takes the view that though there is sufficient

ground for proceeding against some, there is no sufficient

ground for proceeding against others mentioned in the First

Information Report, the informant would certainly be

prejudiced because the First Information Report lodged by him

would have failed of its purpose, wholly or in part. Moreover,

when the interest of the informant in prompt and effective

action being taken on the First Information Report lodged by

him is clearly recognised by the provisions contained in subsection

(2) of Section 154, sub- section (2) of Section 157 and

sub-section (2)(ii) of Section 173, it must be presumed that the

informant would equally be interested in seeing that the

Magistrate takes cognizance of the offence and issues process,

because that would be culmination of the First Information

Report lodged by him. There can, therefore, be no doubt that

when, on a consideration of the report made by the officer in

charge of a police station under sub-section (2)(i) of Section


173, the Magistrate is not inclined to take cognizance of the

offence and issue process, the informant must be given an

opportunity of being heard so that he can make his submissions

to persuade the Magistrate to take cognizance of the offence

and issue process. We are accordingly of the view that in a case

where the magistrate to whom a report is forwarded under subsection

(2)(i) of Section 173 decides not to take cognizance of

the offence and to drop the proceeding or takes the view that

there is no sufficient ground for proceeding against some of the

persons mentioned in the First Information Report, the

magistrate must give notice to the informant and provide him

an opportunity to be heard at the time of consideration of the

report. It was urged before us on behalf of the respondents that

if in such a case notice is required to be given to the informant,

it might result in unnecessary delay on account of the difficulty

of effecting service of the notice on the informant. But we do

not think this can be regarded as a valid objection against the

view we are taking, because in any case the action taken by the

police on the First Information Report has to be communicated

to the informant and a copy of the report has to be supplied to

him under sub-section (2) (i) of Section 173 if that be so, we do

not see any reason why it should be difficult to serve notice of

the consideration of the report on the informant. Moreover, in

any event, the difficulty of service of notice on the informant

cannot possibly provide any justification for depriving the

informant of the opportunity of being heard at the time when

the report is considered by the Magistrate.

5. The position may however, be a little different when we

consider the question whether the injured person or a relative

of the deceased, who is not the informant, is entitled to notice

when the report comes up for consideration by the Magistrate.

We cannot spell out either from the provisions of the Code of

Criminal procedure, 1973 or from the principles of natural

justice, any obligation on the Magistrate to issue notice lo the

injured person or to a relative of the deceased for providing

such person an opportunity to be heard at the time of

consideration of the report, unless such person is the informant

who has lodged the First Information Report. But even if such

person is not entitled to notice from the Magistrate, he can

appear before the Magistrate and make his submissions when

the report is considered by the Magistrate for the purpose of


deciding what action he should take on the report. The injured

person or any relative of the deceased, though not entitled to

notice from the Magistrate, has locus to appear before the

Magistrate at that time of consideration of the report, if he

otherwise comes to know that the report is going to be

considered by the Magistrate and if he wants to make his

submissions in regard to the report, the Magistrate is bound to

hear him. We may also observe that even though the Magistrate

is not bound to give notice of the hearing fixed for

consideration of the report to the injured person or to any

relative of the deceased, he may, in the exercise of his

discretion, if he so thinks fit, give such notice to the injured

person or to any particular relative of or relatives the deceased,

but not giving of such notice will not have any invalidating

effect on the order which may be made by the Magistrate on a

consideration of the report.”

66. Another prayer of the petitioner is to stay the investigation. In

the case of State of Haryana vs. Bajan Lal & others33, it was held that the core

of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if

a police officer has reason to suspect the commission of a cognizable offence,

he must either proceed with the investigation or cause an investiga- tion to be

proceeded with by his subordinate; that in a case where the police officer sees

no sufficient ground for investigation, he can dispense with the investigation

altogether that the field of investigation of any cognizable offence is

exclusively within the domain of the investigation agencies over which the

Courts cannot have control and have no power to stiffle or impinge upon the

proceedings in the investigation so long as the investigation proceeds in

33 AIR 1992 SC 604


compliance with the provisions relating to investigation and that it is only in a

case wherein a police officer decides not to investigate an offence, the

concerned Magistrate can intervene and either direct an investigation or in the

alternative, if he thinks fit, he himself can, at once proceed or depute any

Magistrate sub-ordinate to him to proceed to hold a preliminary inquiry into

or otherwise to dispose of the case in the manner provided in the Code.

(emphasis supplied)

67. In that view of the matter and since we have posted the Writ

Petitions for hearing on 10th December, 2020, wherein the prayer of the

petitioner for quashing the First Information Report would be considered, we

are not inclined to accede to the prayer of the petitioner to stay the

investigation.

68. The petition and application for interim protection proceeds on

the premise that the petitioner is illegally detained. However, on the date of

filing the petition and the application, the applicant – petitioner was in judicial

custody as it is averred by the petitioner himself in the application. The

prayers in the interim application are keeping in view the relief claimed in

terms of prayer clause (a) of the main petition.


69. Mr.Harish Salve, the learned Senior Advocate appearing for the

Petitioner, vehemently argued that the allegations in the First Information

Report, read in its entirety, do not disclose the alleged offence against the

petitioner. The said submission deserves no consideration at this stage when

the investigation is in progress and the alleged suicide note recovered by the

Investigating Officer mentions the name of the petitioner. Since the petitions

are posted for hearing for consideration of prayer of the petitioners for

quashing of the First Information Report, we refrain ourselves from expressing

opinion on merits at this stage. In the facts of the present case, no case is made

out for release of the applicant – petitioner under extra-ordinary writ

jurisdiction.

70. In our opinion, the petitioner has an alternate and efficacious

remedy under section 439 of the Code of Criminal Procedure to apply for

regular bail. At the time of concluding the hearing of Applications, we had

made it clear that if the petitioner, if so advised, to apply for regular bail under

section 439 of the Code of Criminal Procedure before the concerned Court,

then, in that case, we have directed the concerned Court to decide the said

application within four days from filing of the same.

71. In the light of discussion in the foregoing paragraphs, the

Interim Application stands rejected.


72. The observations made hereinabove are prima facie in nature and

confined to the adjudication of the present Interim Application only.

73. The remedy of the petitioner to apply for bail under section 439 of the

Cr.PC shall remain unaffected and rejection of Interim Application shall not be

construed as an impediment to the applicant – petitioner to avail the said

remedy.

74. Needless to observe that in case such an application is filed, the

concerned Court shall decided the same on its own merits without being

influenced by observations made by us in this order in the time limit specified

in paragraph 70 of this order.

( M. S. KARNIK, J.) (S. S. SHINDE, J.)


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