Supreme Court: In a case where the Gujarat High Court had quashed criminal proceedings at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has found it to be a “clear abuse” of High Court’s jurisdiction under Section 482 of the CrPC. The Court noticed that the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.
In a dispute over the title of a land, a sum of money running into crores of rupees is alleged to have been demanded from the appellant, stating that the lands had been sold to land mafias. While the sixth and seventh respondents were named in the FIR, the eighth and ninth respondents were arraigned as accused in the draft charge-sheet. The allegations against the sixth to ninth respondents are that as a part of a criminal conspiracy, they colluded to execute false powers of attorney and MoUs to jeopardize the right and title to the land belonging to the appellant and were party to the extortion of money from him. It is alleged that sixth, seventh and ninth respondents executed champertozus agreements with the legal heirs of the land owner and were alleged to be involved in the extortion of money from the appellant. The eighth respondent, who is an advocate, is alleged to have helped the other accused in drafting the powers of attorney and MoUs.
While the High Court permitted the continuation of investigation in the allegations against the fourth and fifth respondents under Section 385 of the Penal Code 1860 for extortion, it quashed an FIR which was registered against the private respondents under Section 482 of the Code of Criminal Procedure 1973
Not only this, but in its interim order, the High Court allowed the investigation to continue against the accused but directed that the final report cannot be submitted to the Magistrate without its permission. The direction was not supported by any reasoning whatsoever.
The Supreme Court noted that,
“Even at the interim stage, the High Court must demonstrate an application of mind and furnish reasons for issuing any interlocutory direction, which is capable of being tested before this Court in an appropriate case. The interim direction amounted to an unnecessary interference in the investigative process envisaged under the CrPC. The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.”
The Court, however, clarified that a distinct position arises when the chargesheet has been filed before a Magistrate and proceedings under Section 482 are pending before the High Court. In such cases, the High Court must take into consideration the material collected during the investigation. However, the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.
Further, the police have a statutory right to investigate a cognizable offence under Sections 154 and 156 of the CrPC. Sub-Section 2 (i) of Section 173 of the CrPC provides that after the completion of investigation, the police officer in charge of the police station shall forward the final report to the Magistrate who is empowered to take cognizance of the offence alleged in the report. Before taking cognizance of the offence, the Magistrate has to apply their own mind and is not bound by the conclusions drawn by the police.
In Pratibha v. Rameshwari Devi, (2007) 12 SCC 369 a two-judge Bench of this Court has held that the High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding under Section 482 relying on such a report when the report has not been submitted to the Magistrate.
In the impugned judgment, while the High Court has held that the allegations on their face disclose that the fourth and fifth respondents committed the offence of extortion under Section 385 of the IPC and directed that the investigation be continued against them, it has completely failed to examine the allegation of criminal conspiracy qua the other accused where it has been alleged that they were also privy to such extortion. Thus, in such circumstances, when a specific role was attributed to the accused, the High Court could not have quashed the FIR under Section 482 of the CrPC.
Following an unusual, if not extraordinary course, the High Court proceeded to entertain petitions for quashing under Section 482 at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet. A draft charge-sheet was placed before the High Court by the investigating officer only in order to seek its permission, pursuant to the interim order, for submitting the charge-sheet to the competent court. Knowledge in regard to what has transpired during the course of the investigation is obtained by the accused once a copy of the charge-sheet is made available under Section 207 of the CrPC.
It is important to note that even before the charge-sheet was brought to the notice of the High Court, petitions for quashing had already been filed. The High Court ought to have taken note of these developments. The appellant has submitted both in the course of the oral and written submissions that these developments indicate that the accused were complicit with the police. The High Court should have been alive to the abuse of its process.
Also, during the course of the investigation, the sixth to ninth respondents, who were apprehending arrest, moved an application for anticipatory bail, which was allowed by the Sessions Judge.
“While the apprehension of arrest may have led to the filing of an application for anticipatory bail before the Sessions Judge, this could not furnish the basis of a petition for quashing under Section 482 at the behest of persons who were not named in the FIR and who, as stated earlier, had instituted proceedings for quashing even before the draft charge-sheet came to be submitted before the High Court.”
The judgment of the High Court indicates that while analyzing the case set up before it by the applicants in various quashing petitions, it has proceeded to quash the FIR and the draft charge-sheet in respect of applicants who were not even arraigned as accused in the FIR. Hence, the interference by the High Court in the investigation against the eighth and ninth respondents was at a premature stage and was not warranted.
[Jitul Jentilal Kotecha v. State of Gujarat, 2021 SCC OnLine SC 1045, decided on 12.11.2021]
For appellant: Advocate Nikhil Goel
For respondents: Advocates Karan Bharihoke and Khilan Chandrani
*Judgment by: Justice Dr. DY Chandrachud