Court Cannot Order Registration Of FIR Against Investigating Officer U/S 218 IPC Sans Inquiry: Gujarat HC

In a simple, suave, straight forward, significant and stimulating judgment titled Jayrajsinh Madhuba Gadhvi vs State of Gujarat in R/Special Criminal Application No. 2410 of 2019 that was pronounced as recently as on August 22, 2022 as an oral order, the Gujarat High Court has clarified that offences under Sections 218 and 219 of the IPC which pertains to a public servant framing incorrect records for saving a person from punishment and making reports in a corrupt manner, cannot be invoked without initiation of inquiry or in absence of any evidence. It was made indubitably clear in this notable judgment that in the event that these provisions are wrongly invoked such that they would adversely affect and prejudice the career of the public servant, the High Court can expunge the relevant parts from the judicial order of the Magistrate. We thus see that accordingly, the High Court of Gujarat expunged the relevant provisions in the operative part of the Sessions Court’s order.

At the outset, this learned, laudable, landmark and latest judgment authored by a Single Judge Bench of the Gujarat High Court comprising of Hon’ble Ms Justice Vaibhavi D. Nanavati sets the pitch in motion by first and foremost putting forth in para 1 that, "Rule returnable forthwith. Ms. Maithili Mehta, the learned APP waives service of notice of rule for and on behalf of the respondent-State."

While specifying what all relief was prayed for, the Bench then states in para 2 that, "By way of present writ-application the writ-applicant has prayed for the following reliefs :-

"(A) YOUR LORDSHIPS may be pleased to admit this Special Criminal Application;

(B) YOUR LORDSHIPS may be pleased to allow this Special Criminal Application by issuing appropriate writ or order or direction, thereby directing expunction of para 6 and direction no. 2 in the operative order of the order dt. 27.11.2018 passed in Cr.M.A. No. 961 of 2018 passed by Ld. Addl. Sessions Judge, Bhuj-Kachchh;

(C) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the effect, execution and operation of para 6 and direction no. 2 in the operative order of the order dt. 27.11.2018 passed in Cr. M. A. No. 961 of 2018 passed by Ld. Addl. Sessions Judge, Bhuj-Kachchh;

(D) Grant such other and further relief(s) in favour of petitioner as may be deemed just and proper by this Hon’ble Court in the interest of justice.""

As we see, the Bench then discloses in para 3 that, "The Court below while passing order dated 27.11.2018 rejecting the bail to the accused in Criminal Misc. Application No.961 of 2018 directed qua the writ-applicant in para-6 and direction No.2 of the operative part of the order which reads thus :-

"(6) Considering the statements of the witnesses produced in the charge-sheet, the names of accused No.1 - Ashok Manka, accused No.4 - Mahesh Manka and accused No.5 - Laxman Manka have been disclosed. Their names have been removed from the charge-sheet on the basis of the affidavit of the complainant only, which is completely illegal and cannot be legally ratified. Investigating Officer J. M. Gadhvi, who was performing duty at Samkhiyali Police Station at the relevant time has removed wrongfully the names of the accused No.1, 4 and 5 from the charge-sheet filed by him and filed the charge-sheet falsely. Thus, he has committed a serious offence under Section - 218 and 219 of IPC and an offence under Section - 225 by not arresting the accused persons. The present case pertains to the offence under Section - 302, which provides for punishment to the extent of death penalty. This offence can be considered as a serious offence. Therefore, since it appears just and appropriate to order the DSP, East Kutch to initiate a procedure to register an offence against the Investigating Officer, I hereby pass the following order.

ORDER

(1) The present bail application of the applicant/accused is hereby dismissed.

(2) The DSP, East Kutchh is ordered to initiate a procedure of registering an offence under Section - 218, 219, 221 of IPC against Investigating Officer J. M. Gadhvi and report this court in 20 (twenty) days.""

As it turned out, the Bench then reveals in para 4 that, "Being aggrieved by the impugned order dated 27.11.2018 passed by the Additional Sessions Judge, Bhuj-Kutchh in Criminal Misc. Application No.961 of 2018, the writ-applicant is constrained to approach this Court seeking expungement of para-6 of the direction No.2 in the operative part of the order dated 27.11.2018 has filed the present writ-application."

To put things in perspective, the Bench then envisages in para 7 that, "It appears that the writ-applicant herein took up investigation of CR No.I-41 of 2017 registered with Samakhiyali Police Station, East Kutchh, Gandhidham for the offences punishable under Sections 143,144, 147, 148, 149, 302 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The aforesaid FIR came to be filed by one Lagdhirbhai Kesharbhai Manka against five persons viz. (i) Ashok Manka (ii) Piyush Manka (iii) Vanraj Manka (iv) Mahesh Manka and (v) Lakhman Manka on 23.9.2017. Since the writ-applicant came to be transferred to Samakhiyali Police Station, the investigation with regard to the aforesaid complaint came to be entrusted to the writ-applicant herein. It appears that during the investigation out of the five accused, three accused i.e. (i) Ashok Manka (A-1) (ii) Mahesh Manka (A-4) and (v) Lakhman Manka (A-5) were in fact not involved in the offence and from very beginning of the investigation, they had taken a plea of alibi and according to them, two of them were present at Rapar and Adhoyi which is at a distance of 50-60 k.m. from the scene of offence. The writ-applicant conducted investigation and filed charge-sheet against two accused persons whereas ‘C Summary Report’ came to be filed against the other three accused before the Court of learned Magistrate, Bhachau, who had issued notice to the complainant. Out of two accused who were charge-sheeted, one of the accused moved regular bail application before the learned Sessions Judge, Bhuj, Kutchh which came to be registered as Criminal Misc. Application No.961 of 2018 which came to be rejected by the learned Judge by order dated 27.11.2018. However, certain unilateral observations were made against the writ-applicant herein that the writ-applicant being the Investigating Officer has illegally removed the names of the three accused only on the basis of affidavit of the complainant and, therefore, the writ-applicant herein has committed an offence under Sections 218 and 219 of the Indian Penal Code."

While citing the relevant case law, the Bench then enunciates in para 8 that, "It is apposite to refer to the ratio as laid down in State of Maharashtra & Ors., vs. Tasneem Rizwan Siddiquee, reported in AIR 2018 SC 4167, paragraphs 10 and 11 read thus:-

"(10.) Reverting to the prayer for expunging the scathing observations made in the impugned judgment, in particular paragraphs 4-6, reproduced earlier, it is submitted that the said observations were wholly unwarranted as the concerned Deputy Commissioner of Police who was present in Court, could not have given concession to release Rizwan Alam Siddique in the teeth of a judicial order passed by the Magistrate directing police remand until 23rd March, 2018. Moreover, it is evident that the High Court proceeded to make observations without giving any opportunity, whatsoever, to the concerned police officials to explain the factual position on affidavit. The writ petition was filed on 18th/19th March, 2018 and was moved on 20th March, 2018 when the Court called upon the Advocate for the appellants to produce the record on the next day i.e. 21st March, 2018. The impugned order came to be passed on 21st March, 2018, notwithstanding the judicial order of remand operating till 23rd March, 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 opportunity to offer his explanation on affidavit.

(11.) 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 absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23rd March, 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 Ors. Vs. N.M.T. Joy Immaculate, 2004 5 SCC 729 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 paragraphs 4 to 6 of the impugned judgment against the concerned police officials in the facts of the present case.""

Quite significantly, the Bench then hastens to add in para 10 that, "In view of this Court, the impugned order dated 27.11.2018 passed by the Court below directing the DSP, East Kutchh to register offence against the writ-applicant under the aforesaid provisions within a period of 20 days is wholly unjustified. The Court below could not have passed the impugned order without issuance of notice to the writ-applicant herein and without giving an opportunity to the writ-applicant herein to explain the factual position."

Most significantly, the Bench then minces no words to hold in para 11 that, "The Court below has proceeded to direct the DSP, East Kutchh to lodge complaint against the writ-applicant under Sections 218, 219 and 212 of the Indian Penal Code, as referred above. The aforesaid sections invoked by the Court below against the writ-applicant would result in imprisonment for a period of 03 years or fine or both under Section 218 of the Code, imprisonment that would extend upto 07 years or fine or both for the offence committed under Section 219 of the Code and imprisonment for term which would extend upto 10 years under Section 221 of the Code. The aforesaid sections have been invoked without initiation of any inquiry or any material on record and in absence of any evidence and the same amounts to prejudice to the writ-applicant causing irreparable injury to the writ-applicant and the same would also amount to adversely affect and prejudice the career of the writ-applicant."

As a corollary, the Bench then directs in para 12 that, "In view of the aforesaid, it is directed to expunge the para 6 and direction No.2 in the operative part of the order of the order dt. 27.11.2018 passed in Criminal Misc. Application No. 961 of 2018 passed by Ld. Addl. Sessions Judge, Bhuj-Kutchh."

Finally, the Bench then aptly concludes by directing in para 13 that, "The present application stands allowed accordingly. Rule is made absolute to the aforesaid extent."

In conclusion, the Gujarat High Court has left no stone unturned to make it pretty clear that the Court cannot order the registration of FIR against investigating officer under Section 218 IPC sans inquiry. It thus merits no reiteration that all the lower courts must definitely pay heed to the same as laid down in this learned judgment. No denying it!