Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., while denying interim protection to Arnab Goswami in a case of alleged abetment to suicide discussed the essence of “Power of Superintendence”.

The instant application was filed for interim protection in a criminal petition filed for a Habeas Corpus to produce the petitioner who had been illegally arrested and wrongfully detained by the Alibaug Police Station in regard to an FIR registered under Sections 306 and 32 of the Penal Code, 1860 despite a closure report being filed.

Petitioner alleged gross abuse of State’s power by respondents in effecting his arrest and consequent alleged illegal detention.

Senior Advocate Harish Salve for the petitioner, Senior Advocate Amit Desai for State and Senior Advocate Shirish Gupte appearing for the victim.

Senior Advocate Harish Salve contended that not only the arrest 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 Magistrate.

Re-investigation commenced by respondents was being conducted without any permission of the Magistrate under Section 173(8) of the Criminal Procedure Code, 1973.

Court shall exercise its extraordinary powers under Article 226 of the Constitution of India and inherent jurisdiction under Section 482 CrPC by protecting the petitioner.

Reference to the FIR | Alleged Suicide

 The FIR dated 05-05-2018 was in relation to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ It was alleged that the deceased had left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Officers of the Alibaug Police Station visited the petitioner’s office informing him about the unfortunate incident and stated that the suicide note had the name of the petitioner.

Senior Advocate Salve submitted that in blatant violation of the fundamental rights to life and personal liberty of the petitioner and his dignity, the petitioner was arrested. He was forced out from his residence with police officials barging into his house and dragging him into the police vehicle. Even his son was assaulted in this process.

Brazen attempt of vendetta politics

Senior Advocate urged that once the case was closed by Mumbai Police in the year 2019, which report was also accepted by the Chief Judicial Magistrate, the same is being reinvestigated with the sole purpose of misusing the 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.

He added to his submission 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.

Since there was no direct involvement of the petitioner with the deceased, the ingredients to attract the offence of abetment were also absent.

Cases relied upon by the Senior Advocate to support his submissions were:

Arjunan v. State, (2019) 3 SCC 315

Mohan v. State, (2011) 3 SCC 626

SS Cheena v. Bijay Kumar Mahajan, (2010) 12 SCC 190

Amlendu Pal v. State of West Bengal, (2010) 1 SCC 707

Gurcharan Singh v. State of Punjab, Supreme Court of India Criminal Appeal No. 40 of 2011

Rajesh v. State of Haryana, 2019 SCC OnLine SC 44

Adding to his contentions, Senior Advocate also submitted 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.

If re-investigation itself is on an illegal premise, the detention of the petitioner has to be declared as illegal.

Mr Salve further contended 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 the High Court to stay the investigation and prevent the abuse of process and promote the ends of justice.

Analysis, Law and Decision

In the light of the law laid down by the Supreme Court in the case of State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745, 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.

Bench referred to the decision of Supreme Court in Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266, wherein the High Court had released the original petitioners on bail while exercising writ jurisdiction. Supreme Court had allowed the appeal filed by the Serious Fraud Investigation Office and original writ petitioners and directed to surrender before the Special Court.

Adding to its analysis, Court stated that the issue as to the exercise of jurisdiction by the High Court in a proceeding relating to the quashing of First Information Report has been authoritatively dealt with in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779. In the cited case, parameters as to the circumstances and situations where the Court’s inherent power can be exercised were clarified.

Bench in the instant matter opined that the High Court has jurisdiction to quash the investigation and pass appropriate interim orders as though apposite law. Though, 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.

“The legislature has provided specific remedy under Section 439 CrPC 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 the 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.”

Power of Superintendence

Court stated that in light of the relevant provisions, State Government in exercise of its powers directed the local Crime Investigation Branch, Raigad—Alibag to conduct further investigation of the said offence.

Supreme Court in its’ decision of State of Bihar v. J.A.C Saldanha,, (1980) 1 SCC 554  explained the concept of power of superintendence:

“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.”

Hence, in view of the above, Court stated that the State Government can always direct a further investigation to the police officers concerned.

Rule 219 of the Bombay Police Manual, 1959

Clause (3) of the above stated Rule 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).

In the instant case, jurisdictional Magistrate 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 wanted to the carry out further investigation in the offence.

“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.”

Court holds that the Magistrate was intimated about the further investigation and even statements were recorded under Section 16 CrPC after obtaining permission from Chief Judicial Magistrate.

Hence further investigation cannot be held as illegal and without seeking permission of the Magistrate. Same is in consonance with the power conferred by Section 173(8) CrPC.

Informant had filed the representation to the State Government and police officers for redressal of her grievance.

Bench further considered the decision of the Supreme Court in Vinubhai Haribhai Malaviya v. State of Gujarat, 2019 SCC OnLine SC 1395 considered the fact situation as to whether post-cognizance, the Magistrate is denuded of is powers of further investigation.

In the instant matter, post-filing of “A” summary, an intimation was given to the Magistrate by the Investigating Officer that they were carrying out further investigation whereafter, even the statements under Section 164 of the Code of Criminal Procedure were recorded by the Magistrate concerned pursuant to the directions issued by the Chief Judicial Magistrate.

“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.”

Stay the Investigation

Supreme Court’s decision in State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335, was referred, wherein it was held that,

“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 investigation 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 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 subordinate 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)

In such view of the matter and since the writ petitions have been posted for hearing on 10-12-2020, Court declined to stay the investigation.

Therefore, the Bench held that no case for release of the applicant was made out. Petitioner has an alternate and efficacious remedy under Section 439 CrPC to apply for regular bail. [Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 2615, decided on 09-11-2020]

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