TMI Blog2024 (2) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- As it s a matter of serious concern that despite the legal position settled by this Court in catena of decisions, the High Court has passed the impugned orders staying the investigations of the FIRs and ECIR in question in utter disregard of the said settled legal position. Without undermining the powers of the High Court under Section 482 of Cr.PC to quash the proceedings if the allegations made in the FIR or complaint prima facie do not constitute any offence against the accused, or if the criminal proceedings are found to be manifestly malafide or malicious, instituted with ulterior motive etc., we are of the opinion that the High Court could not have stayed the investigations and restrained the investigating agencies from investigating into the cognizable offences as alleged in the FIRs and the ECIR, particularly when the investigations were at a very nascent stage. It hardly needs to be reiterated that the inherent powers under Section 482 of Cr.PC do not confer any arbitrary jurisdiction on the High Court to act according to whims or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In a way, by passing such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Enforcement against the concerned respondents, and further directed not to take any coercive action against the said respondents pending the said writ petitions. All the appeals being interconnected with each other, they were heard together and it would be appropriate to decide them by this common judgment. 3. The respondent India Bulls Housing Finance Limited (IHFL) is a nonbanking financial institution incorporated under the provisions of the Companies Act. IHFL deals with the public money. The major source of funds for the loans to be advanced by IHFL, is either the loans from the other banks or from the public in the form of non-convertible debentures. The respondents Niraj Tyagi is the President (Legal) and Reena Bagga is the authorized officer of the IHFL. 4. M/s Kadam Developers Pvt. Ltd. (hereinafter referred to as M/s Kadam) was one of the Shipra Group entities. M/s Kadam had a sublease of a parcel of land admeasuring 73 acres in Sector 128, Noida, which was allotted to it by the predecessor of Yamuna Expressway Industrial Development Authority (hereinafter referred to as the YEIDA). The 100% equity shares of M/s Kadam were held by Shipra Estate Limited (98%); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Walia, a Director of Shipra Hotels, against IHFL and its officers for the offences under Sections 420, 467, 468, 471, 120-B IPC, 323, 504 506 at Police Station Indirapuram, alleging inter alia that IHFL had illegally showed the Shipra group to be the defaulters, so that they may misappropriate the properties owned by the Group through illegal means. The FIR also alleged that IHFL had conspired with M3M India, and by forging and fabricating the documents sold 73 acres of land of M/s Kadam to M3M India, for a sum of 300 crores when the market value of the same was about 4000 crores. IHFL had also undervalued the shares and securities on the basis of false and forged documents and had caused great loss to the Shipra Estate Company and its Directors. 9. On 15.04.2023, another FIR being No. 197 of 2023 came to be filed by YEIDA against IHFL, M3M India, M/s Kadam and M/s Beacon Trusteeship Ltd. for the offences under Sections 420, 467, 468, 471 and 120-B at Police Station Beta-2, Greater Noida alleging inter alia that the first charge of YEIDA was preserved in the permission issued on 09.01.2018 for pledging the shares to IHFL however, the IHFL neither informed nor sought any perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Greater Noida, UP, which also refers to the aforesaid FIR No. 427/2023 dated 09.04.2023 registered at P.S. Indirapuram with some overlapping facts. It is stated that on the basis of these two connected FIRs namely FIR No. 427/2023 and 197/2023, now the ED has registered ECIR bearing No. ECIR/HIU-I/06/2023 in Delhi. The petitioners have now challenged the said FIRs and ECIR. 6. In the circumstances, as it may also involve adjudication on facts, we deem it appropriate to permit the petitioners to approach the respective jurisdictional High Courts to challenge all four FIRs and the ECIR within two weeks from today, with a request to the respective High Courts to consider and decide the petitions expeditiously, not later than six months of their presentation. 7. We also direct DGPs of respective States to look into the matter, examine the contentions of the petitioners in respect of the contents of FIRs, and to take appropriate measures in accordance with law within a period of one month. 8. Till final disposal of the respective petitions, interim order dated 28.04.2023 passed in W.P.(Crl.) No. 166/2023 would continue in the three FIRs mentioned therein. 9. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IU-I/06/2023 registered by Respondent No. 4, shall remain stayed so far as it confines to the petitioners only and no coercive action shall be taken against them. 16. The High Court passed the other impugned orders on 08.08.2023 in Criminal Miscellaneous Writ Petition No.11837/2023 and on 13.09.2023 in Criminal Miscellaneous Writ Petition No.14053/2023, following the order dated 13.07.2023 passed in Writ Petition No.10893/2023.Consequently, the proceedings of the FIR No.197/2023, FIR No.611/23 as also the ECIR No. ECIR/HIU-I/06/2023 have been stayed qua the concerned respondents herein pending the said three writ petitions before the High Court, and the concerned respondents who are the accused in the said FIRs have been protected from any coercive action being taken against them. The present appeals stem out of the aforesaid impugned orders passed by the High Court. 17. The ASG, Mr. Raju appearing for the appellant ED in all the three appeals vehemently submitted that this Court had passed the order dated 04.07.2023 in Gagan Banga s case staying the proceedings of ECIR and the FIRs registered against the concerned respondents without hearing the ED, and therefore the ED h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their mind, which otherwise would have the potentiality to affect the marrows of economic health of the nation. 19. At the outset, it may be noted that the impugned interim orders have been passed by the High Court under the umbrella of the order dated 04.07.2023 passed by this Court in Gagan Banga s case, creating an impression that the impugned orders were passed in furtherance of the said order, though this Court had passed the said order leaving it open to the High Court to decide the writ petitions on their own merits. 20. In our opinion, it s a matter of serious concern that despite the legal position settled by this Court in catena of decisions, the High Court has passed the impugned orders staying the investigations of the FIRs and ECIR in question in utter disregard of the said settled legal position. Without undermining the powers of the High Court under Section 482 of Cr.PC to quash the proceedings if the allegations made in the FIR or complaint prima facie do not constitute any offence against the accused, or if the criminal proceedings are found to be manifestly malafide or malicious, instituted with ulterior motive etc., we are of the opinion that the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the criminal proceedings/complaint/FIR in exercise of powers under Section 482CrPC and/or under Article 226 of the Constitution of India, our final conclusions are as under: 33.1. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence. 33.2. Courts would not thwart any investigation into the cognizable offences. 33.3. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. 33.4. The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty). 33.5. While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. 33.6. Criminal proceedings ought not to be scuttled at the initial stage. 33.7. Quashing of a complaint/FIR should be an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR. 33.16. The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482CrPC and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or no coercive steps to be adopted and the accused should be relegated to apply for anticipatory bail under Section 438CrPC before the competent court. The High Court shall not and as such is not justified in passing the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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