IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Writ Petition No. 632 of 2011 Acharya Bal Krishna …Petitioner Versus C.B.I. and another …Respondents Hon’ble Tarun Agarwala, J. A First Information Report dated 24th July, 2011 was lodged against the petitioner under Section 120- B, 420, 467, 468 and 471 I.P.C. as well as under Section 12 of the Passports Act on the ground of criminal conspiracy, cheating, forgery of valuable security, forgery for the purpose of cheating, using forged documents as genuine and furnishing false information or suppression of material facts for obtaining an Indian passport. The First Information Report indicates that a written representation dated 29th April, 2011 was made by Shri Acharya Pramod Krishnam, President, Akhil Bhartiya Sant Samiti, Bahadurgarh, Haryana, addressed to the President of India, alleging that the petitioner Acharya Bal Krishna is not an Indian citizen and is a citizen of Nepal and that his address of Nepal is “Village Gandaki, District Virat Nagar, Nepal”. In the complaint, it was also alleged that Acharya Bal Krishna obtained an Indian passport while living at Haridwar despite being a citizen of Nepal. This representation sent to the President of India was forwarded to the Office of the Prime Minister, which, in turn, forwarded it to the Department of Personnel and Training and, eventually, it was handed over to the C.B.I. The First Information Report indicates that a preliminary enquiry was registered by the C.B.I., Dehradun on 26th June, 2011 against Shri Bal 2 Krishna of Patanjali Yog Peeth and Divya Yog Mandir, Haridwar. The enquiry revealed that the petitioner had obtained the passport on the basis of forged documents, namely, the certificates of educational qualifications issued from Sampurna Nand Sanskrit Vishwavidyalaya. The report further stated that the enquiry was also made from the Passport Office, Bareilly, from where the passport was issued in favour of Sri Bal Krishna, in which it was revealed that the passport was made on the basis of these educational certificates issued from Sampurna Nand Sanskrit Vishwavidyalaya, which the University has certified it to be a false and a forged document. The report further indicated that during enquiry, it was found that the Municipal Council, Haridwar, had issued a birth certificate on 5th December, 1997 to Bal Krishna indicating his date of birth as 25th July, 1972 and also indicating that the parents of Bal Krishna were of Indian nationality. The enquiry further revealed that a fresh certificate was issued by the Municipal Council, Haridwar, in the year 2006, in which the nationality of the parents of Bal Krishna was rectified as citizens of Nepal. The First Information Report alleges that Bal Krishna is a citizen of Nepal and originally belongs to “Village Bharua, Walid-5, District Syangja, Gandaki, Nepal” and that he was a student of “Sri Tej Prathmik Vidyalaya, Syangja, Gandaki, Nepal” and that his name recorded in the school was “Narayan Prasad Suvedi S/o Jai Vallabh Suvedi.” The report further indicates that these facts have not been verified during preliminary enquiry as Nepal is a foreign country and that the same could only be verified 3 during investigation in a regular case as per the provision of law. The First Information Report further indicates that the preliminary enquiry has established that Bal Krishna in connivance with unknown persons has furnished false information and forged documents to the Passport Office, Bareilly, for getting an Indian passport and that Bal Krishna in connivance with unknown persons has cheated the Passport Office in getting the passport issued in his favour. On the aforesaid facts, the First Information Report alleges the commission of offences of criminal conspiracy, cheating, forgery, using forged documents as genuine and furnishing false information or suppressing material information with a view to obtain an Indian passport. Upon the lodging of the First Information Report, the petitioner has filed the present writ petition praying for the following reliefs: “(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report No. RC0072011S008 u/s 12 of the Passports Act-1967 and under Section 120-B, 420, 467, 468 & 471 IPC, registered at Police Station CBI/SPE Dehradun against the petitioner on 24.07.2011 (Annexure No. 8) to this writ petition. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioner in pursuance of the First Information Report No. RC0072011S008 u/s 12 of the Passports Act-1967 and under Section 120-B, 420, 467, 468 & 471 IPC, registered at Police Station CBI/SPE Dehradun against the petitioner on 24.07.2011. (c) Pass any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 4 (d) Award the cost of the writ petition to the petitioner.” Heard Sri S.K. Agrawal, the learned Senior Counsel with Sri Rajendra Dobhal, the learned Senior Counsel, Sri Nandit Srivastava, Sri Lokendra Dobhal and Sri D.C.S. Rawat, the learned counsel for the petitioner and Sri Arvind Vashisth, the learned counsel with Mrs. Monika Pant, the learned counsel for the respondents. The petitioner contended that he was born on 25th July, 1972 in Dadubagh, Kankhal, Haridwar in the family of Jai Vallabh Suvedi, who is a citizen of Nepal and, since his birth, the petitioner is residing in the territory of India. The petitioner was issued a birth certificate by the Registrar, Deaths and Births, Kankhal, Haridwar. The petitioner contended that the birth certificate contained a typographical error, which was subsequently rectified and a fresh birth certificate was issued in the year 2006 indicating that the parents of the petitioner are citizens of Nepal. The petitioner contended that being an Indian citizen, he applied for a passport under the provision of the Passports Act in February, 1998 and, in support of his date of birth etc., had filed the educational certificates issued from Sampurna Nand Sanskrit Vishwavidyalaya. The petitioner contended that the certificates issued are genuine and are not forged documents and that the passport was granted after due verification by the police as well as by the local intelligence unit. The passport was subsequently renewed and the same procedure was followed and nothing against the petitioner was found during those stages. The petitioner categorically asserted that he is 5 an Indian citizen and is not a citizen of Nepal nor has the passport been obtained on the basis of false and forged documents. The petitioner further contended that no proceedings under Section 12 of the Passports Act has been initiated for any offence committed under the Passports Act nor has the passport been impounded or revoked. It was also alleged that the First Information Report is vindictive and malafide. In paragraph 13 of the writ petition, it was alleged that the petitioner is a close associate of Swami Ramdev, who has started a movement against corruption and for bringing back the black money deposited by the politicians and other corrupt persons and, on account of this movement which Swami Ramdev had started, these politicians and other corrupt persons are trying to falsely implicate the petitioner. The petitioner, in paragraph 14 of the writ petition, has also alleged that he has come to know from the news channels that a lookout notice has been issued by the C.B.I., who are trying to arrest the petitioner in this false case. The petitioner has, accordingly, prayed for protection and submitted that in case he is arrested, he will face great humiliation and his reputation would be tarnished and consequently, prayed for the quashing of the First Information Report and, further prayed that he should not be arrested pursuant to the lodging of the First Information Report. The C.B.I. in the counter affidavit has contended that there is no malafide in the lodging of the First Information Report nor has been lodged to bring down the reputation of the petitioner. The learned counsel contended that the allegation of malafide made in 6 paragraph 13 of the writ petition is patently vague. No specific person has been named nor anything has been stated against the informant or against the Government or against its agencies and consequently, on this ground, the First Information Report cannot be quashed. The learned counsel submitted that based on a written complaint, a preliminary enquiry was registered, which revealed that the certificates filed by the petitioner for obtaining an Indian passport were forged and fabricated documents and that the petitioner had given false information in procuring an Indian passport. The learned counsel further submitted that the enquiry has revealed that the petitioner is not an Indian citizen, but is a citizen of Nepal and that the petitioner had spent his early childhood days studying in Nepal. The learned counsel contended that since Nepal is a foreign country, necessary steps have been taken by the C.B.I. seeking permission from the Government to investigate in the matter and that the said investigation can only happen once permission is granted to the C.B.I. to go to Nepal. The learned counsel further submitted that the enquiry has revealed that the documents relating to the issuance of the birth certificate from the Municipal Council, Haridwar, has been misplaced and that the involvement of the petitioner in the removal of such records cannot be ruled out. The learned counsel further submitted that on account of the interim order granted by this Court restraining the C.B.I. from arresting the petitioner, the petitioner is not revealing the true facts when he was called to assist in the investigation and consequently, it is necessary in the 7 interest of justice to interrogate the petitioner in custodial remand. The learned counsel submitted that a bare reading of the First Inforamtion Report would indicate that a prima facie case of a cognizable offence has been made out and that there is nothing to indicate that the lodging of the First Information Report was malafide or was an abuse of process of law, which could allow the Court to interfere in the investigation and quash these proceedings. The learned counsel, accordingly, submitted that the writ petition is devoid of merit and was liable to be dismissed and that the interim order was liable to be vacated. Liberty is a fundamental right guaranteed under the Constitution of India. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Arrest of a person is deprivation of his personal liberty. Arrest of a person causes a dent in the reputation of that person. Reputation is a part and parcel of the personal liberty guaranteed under Article 21 of the Constitution, but it does not mean that the person cannot be arrested in accordance with the provision of law. Section 41 of the Code of Criminal Procedure provides that a person could be arrested by any police officer without an order from the Magistrate and without a warrant. Normally, arrest is part and parcel of the investigation which follows when a First Information Report is lodged. When an investigation begins, an Investigating Officer is empowered to make an enquiry and, in the facts and circumstances of that particular case, if the situation so warrants, the 8 Investigating Officer has a discretion and could arrest the person in furtherance of the investigation. The police officer is not expected to act in a mechanical manner and arrest an accused in all cases where a report is lodged. In appropriate cases, after some investigation, the Investigating Officer is required to make up his mind as to whether it is necessary to arrest the accused person or not. Since the power is discretionary, the Investigating Officer is not bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. This is on account of the fact that the arrest is in the nature of encroachment of the liberty of that person and it does affect the reputation and status of that person. Consequently, the power of arrest has to be exercised cautiously and it depends mostly on the nature of the offence and the type of the persons who are accused of committing a cognizable offence. Under the Central Bureau of Investigation (Crime) Manual, Chapter 12 provides the provision relating to the arrests, custody, bail and remand. Paragraph 12.3 of the Manual is relevant and is extracted hereunder: “12.3. However, as arrest takes away liberty of an individual, the power to arrest vested under Section 41 Cr.P.C. must be exercised with due care and caution. The power being discretionary must be used with due care to ensure that the human rights of any individual are not violated under any circumstances. The arrest may be made only when it is reasonably felt that the individual so arrested is involved in the commission of a heinous crime and will be prosecuted in the Code of Law for the offences committed by him and it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law. The police officers of the SPE must observe guidelines 9 issued in this regard from time to time. The Superintendent of Police must satisfy himself, before officers working under his control effect and arrest, by evaluating the evidence available against any individual, and need to affect the arrest. If the case has been registered with the approval of the regional office or the Head Office, necessary permission may be obtained from the competent authority by sending an arrest proposal to the said authority through the DIG concerned. In respect of public servants, the instructions given in the paragraph below may be observed. Undue publicity for arrests made must be avoided.” A perusal of the aforesaid would indicate that the power of arrest is discretionary and must be exercised with due care and caution to ensure that human right of an individual is not violated and the arrest may be made only if it is felt that the accused was involved in the commission of a heinous crime. Such steps taken by an Investigating Officer in accordance with the procedure evolved under the Code of Criminal Procedure will not infringe the personal liberty guaranteed under Article 21 of the Constitution. But, a balance has to be maintained and if the Investigating Officer exceeds the powers granted under the Code of Criminal Procedure and acts malafidely with the aim to cause harassment to sully the reputation of the person, the court will step into the picture and exercise its inherent powers to grant relief and protect the personal liberty of that person. The protection of liberty and the power to arrest is separated by a thin line. The investigation team is required to act with care and with circumspection and only exercise the power of arrest where it is necessary to do so and, is not required to exercise its power of arrest in a routine manner in each and every case on the lodging of the First Information Report. On the 10 other hand, the court should also restrain itself from exercising its inherent powers in a routine manner and should only quash the proceedings in rare cases where the court finds from a reading of the First Information Report that no offence whatsoever is made out or where the proceedings initiated smack of malafides. The aforesaid view has been settled in a large number of cases which the Court will refer hereinafter. An overall reading of the Code of Criminal Procedure would make it clear that the condition, which is sine qua non for recording a First Information Report is, that there must be an information which discloses a cognizable offence, which leads to the registration of a criminal case under Section 154(1) of the Code, which, in turn, ipso facto warrants the setting in motion of an investigation. The information disclosing a cognizable offence must satisfy the requirement of Section 154 of the Code before the police officer for registration of the case on the basis of such information. Once the case is registered, the Investigating Officer is empowered to investigate the matter. In State of West Bengal vs. Swapan Kumar Guha, AIR 1982 SC 949, the Supreme Court held: “The position which emerges from these decisions and the other decisions which are discussed by brother A.N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry is conditioned by the existence of reason 11 to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence.” In State of Haryana and others vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, the Supreme Court concluded the parameters of an investigation to be led by the Investigating Officer and held: “62. The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers excercisable up to unfathamable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.” 12 The Supreme Court held that if the police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty of a citizen, then the court on being approached by the person aggrieved can pass appropriate orders to protect the dignity of that person which is guaranteed under the Constitution. In the light of this, the Supreme Court gave illustrations in paragraph 108 as to when the court can exercise its extraordinary powers under Article 226 of the Constitution to protect the personal liberty of a citizen. The said illustrations are extracted hereunder: “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 13 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The Supreme Court, while issuing the aforesaid directions, considered its earlier judgment in S.N. Sharma vs. Bipen Kumar Tiwari, AIR 1970 SC 786, wherein the Supreme Court held that even though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, yet in appropriate cases, an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution and if the court is convinced that the power of investigation has been exercised malafidely, the High Court can always issue a mandamus restraining the police officer from misusing his legal powers. In M/s Pepsi Foods Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128, the Supreme Court held that the provision of Article 226 is a device to 14 advance justice and not to frustrate it. The power of judicial review is discretionary and should be exercised to prevent miscarriage of justice and to correct grave error and to prevent abuse of process of law. The Supreme Court, however, held that the power should be exercised with due care and caution. Consequently, in the opinion of the Court, the arrest of a person is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest, otherwise such arrest is not permissible. The Court has a duty to balance the freedom of a person and the right of the investigation team to investigate the offence. So long as the investigation is made in accordance with the provision of law, the court should be loath to interfere in such investigation, but if the court comes to the conclusion that the investigation is nothing but a means to harass the accused, the court can always interfere in such investigation. On the question of malafide, the Supreme Court in Bhajan Lal’s case (supra) has held that when there are only allegations and recriminations on no evidence, the court could not anticipate the result of the investigation and render a finding on the question of malafides on the material placed before it. In Sheo Nandan Paswan vs. State of Bihar, (1987) 1 SCC 288, the Supreme Court held that where a criminal prosecution was based on adequate evidence, such investigation cannot be vitiated on account of political vendetta or malafides of the first informant or of the complainant. Malafide has to be specific and supported by evidence or reasons and cannot be vague which would have no consequence and cannot 15 by themselves be the basis for quashing the proceedings. The Court, at this stage, would like to quote