Jitul Jentilal Kotecha vs State of Gujarat and Ors. etc.

s. 482 – Inherent powers of High Court – Exercise of – On facts, dispute over title of land – FIR registered against respondents u/ss 465, 467, 468 and 120B IPC by the appellant – Respondents nos. 2 to 7 filed petitions u/s 482 before the High Court for quashing of FIR – Interim order by the High Court that investigation to be continued but charge-sheet to be filed only with its permission – Draft charge-sheet placed before the High Court for offences punishable u/ss. 385, 389, 418, 477, 506(2), 120B and 34 IPC – Draft charge-sheet also arraigned respondents nos. 8 and 9 – High Court quashed the FIR except for the allegations against respondents nos. 4 and 5 u/s. 385 IPC – On appeal, held: High Court transgressed the limitations on the exercise of its jurisdiction u/s.482 in quashing the FIR and all consequential proceedings, and by restricting the police from submitting the charge-sheet before the magistrate and by further perusing the contents of the draft chargesheet in the proceedings before it – High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the magistrate to quash the criminal proceedings u/s 482 – High Court’s direction to not submit report to Magistrate prior to placing the same before it was devoid of any reasoning – Interim direction amounted to an unnecessary interference in the investigative process envisaged under the CrPC – Furthermore, allegations in the FIR prima facie indicate that respondent nos 6 and 7 entered into champertous agreements with the legal heirs of SB and were alleged to be involved in the extortion of money from the appellant – High Court held that the allegations on their face disclose that respondent nos 4 and 5 committed the offence of extortion u/s 385 IPC and directed that the investigation be continued against them – However, the High Court completely failed to examine the allegation of criminal conspiracy qua the other accused – Thus, when a specific role was attributed to the accused, the High Court could not have quashed the FIR u/s.482 – As regards, respondent nos. 8 and 9 who were named as accused in the draft charge-sheet and not in the FIR, instituted quashing petitions, before the draft charge-sheet was placed before the High Court and the High Court proceeded to entertain their petitions u/s.482 – Interference by the High Court in the investigation against respondent nos. 8 and 9 was at a premature stage and not warranted – There has been a clear abuse of the process – Thus, the order passed by the High Court set aside. s. 482 – Inherent powers of High Court – Exercise of – Held: Inherent powers by High Court must be exercised sparingly and with circumspection – Inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whim and caprice – Inherent powers cannot be invoked to sidestep statutory provisions – High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding u/s. 482 relying on such report when the report has not been submitted to the Magistrate.

Allowing the appeals arising out of SLP (Crl) Nos 5736-39 of 2019 and dismissing the appeals arising out of SLP (Crl) Nos 5734 and 5735 of 2019, the Court

HELD: 1. The High Court must exercise its inherent powers under Section 482 of the Code of Criminal Procedurre, 1973 sparingly and with circumspection. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The inherent powers of the High Court cannot be invoked to sidestep statutory provisions. [Para 20][29-F-H]

Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC

683 : [2009] 10 SCR 857; Simrikhia v. Dolley

Mukherjee (1990) 2 SCC 437 : [1990] 1 SCR 788; Pratibha v. Rameshwari Dev (2007) 12 SCC 369 : [2007] 9 SCR 1038 – referred to.

2.1. The police have a statutory right to investigate a cognizable offence under sections 154 and 156 of the CrPC. Sub-ETC.

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. The High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding under s. 482 relying on such a report when the report has not been submitted to the Magistrate. [Para 20][30-C-E]

2.2. The High Court in its interim order dated 2 May, 2016, 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. 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 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. [Para 20][31-D-F]

2.3. A distinct position arises when the charge-sheet has been filed before a magistrate and proceedings u/s 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 u/s 482. [Para 21][31G-H; 32-A]

Kaptan Singh v. The State of Uttar Pradesh Criminal Appeal No. 787 of 2021; Mahendra KC v. State of Karnataka Criminal Appeal No. 1238 of 2021 - referred to.

2.4. The allegations in the FIR prima facie indicate that the sixth and seventh respondents entered into champertous agreements with the legal heirs of SB and were alleged to be involved in the extortion of money from the appellant. In the impugned judgment, the High Court held that the allegations on their face disclose that the fourth and fifth respondents committed the offence of extortion u/s 385, IPC and directed that the investigation be continued against them. However, the High Court 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 s. 482 of the CrPC. [Para 23][33F-H; 34-A]

2.5. During the course of its impugned judgment, the High Court noted that certain persons (the eighth and ninth respondents) who were named as accused in the draft chargesheet had instituted quashing petitions, evidently before the draft charge-sheet was placed before the High Court. In this backdrop, there is substance in the submission on behalf of the appellant that the proceedings before the High Court have followed an unusual, if not extraordinary course. The High Court proceeded to entertain petitions for quashing under s. 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 chargesheet 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 chargesheet is made available under Section 207 of the CrPC. Evidently, the persons whose names were mentioned in the draft charge-sheet had already moved the High Court in proceedings under Section 482 at a point of time anterior to the investigating officer submitting the charge-sheet to the High Court for seeking its permission to submit it before the competent court in accordance with law. The draft charge-sheet records filing of the petitions for quashing in the High Court which would indicate that even before the charge-sheet was brought to the notice of ETC.

the High Court, petitions for quashing had already been filed. The High Court ought to have taken note of these development. 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. [Para 24][34-A-E; 35-A-B]

2.6. 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 draft charge-sheet in respect of applicants who were not even arraigned as accused in the FIR. The interference by the High Court in the investigation against the eighth and ninth respondents was at a premature stage and was not warranted. [Para 25][35-C-E]

2.7. During the course of oral arguments, it was urged on behalf of the respondents that a prior complaint had been registered against the appellant which had resulted into the submission of a charge-sheet. The respondents ought to have drawn the attention of this Court to the fact that on July 8, 2021, the High Court in Criminal Misc. Application No 10523 of 2021 had quashed the prior complaint as well as the charge-sheet and all consequential proceedings at the behest of the appellant, a fact which emerged out of the written submissions filed on behalf of the appellant. Another submission which was urged on behalf of the respondents is that the appellant had arrived at a compromise in respect of some of the accused and the entire FIR was quashed. On this aspect, the appellant in the written submissions has recorded that the memo of Criminal Misc. Application No 10529 of 2021 was filed by two persons (the fourth and fifth respondents) in respect of whom proceedings were directed to be continued. In this backdrop that the order dated

9 July 2021 records that the entire FIR stands quashed. The FIR against all the accused except the said two persons stood quashed as a result of the impugned order dated 8 January, 2019. Hence, order dated 9 July 2021 only quashed the FIR against the remaining two accused with whom there was a subsequent compromise. In this backdrop, the appellant stated that SLP (Crl) Nos 5734 and 5735 of 2019 are not being pressed. The respondent to the above SLPs are the legal heirs of the seller of the land from whom the appellant and his family members purchased the land and their spouses. The other accused are allegedly the persons who had executed champertous agreements or aided in their execution (eighth respondents) and who are alleged to have been party to the extortion of money from the appellant. Hence, the High Court transgressed the limitations on the exercise of its jurisdiction under s. 482 of the CrPC in quashing the FIR and all consequential proceedings. There has been a clear abuse of the process before the High Court. Thus, the impugned judgment and order of the High Court are set aside. [Para 26, 27][35-F-H; 36-A-E]