Quashed

Kaushalya Bai v. State of Chhattisgarh

Chhattisgarh HC15 Mar 2022WPCR/146/2022

Case brief

AI extract

What is this about?

The petitioner challenged a police notice issued under Section 91 CrPC for a preliminary inquiry where no cognizable offence was registered. The High Court quashed the notice, holding that Section 91 CrPC does not apply to preliminary inquiries before FIR registration, rendering the notice without jurisdiction.

What did the court decide?

The notice dated 24.01.2022 (Annexure P-1) requiring the petitioner to appear before the police was quashed, and the petition was allowed.

Kaushalya Bai Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2022)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPCR No. 146 of 2022

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Kaushalya Bai, D/o Shri Kaliram Satnami, W/o Shri Amrit Lal Banjare, aged about 55 years, R/o village Savitripur, Tehsil Pithora, District Mahasamund Chhattisgarh. --- Petitioner

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Versus

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State of Chhattisgarh through Secretary, Department of Home Affairs (Police), Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh.

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Additional Superintendent of Police Mahasamund, District Mahasamund Chhattisgarh.

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Station House Officer Police Station Mahasamund, District Mahasamund Chhattisgarh.

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Station House Officer Police Station Patewa, District Mahasamund Chhattisgarh.

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Ram Awatar Agrawal S/o Shri Suwalal Agrawal Aged About 57 Years R/o Lakhe Nagar Dhaal, Mahadev Ghat Road, Raipur, Tehsil And District Raipur Chhattisgarh. Presently R/o Samta Colony, Infront of Union Bank, Raipur, Tehsil and District Raipur Chhattisgarh.

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Rashmi Agrawal S/o Shri Ram Awatar Agrawal Aged About 47 Years R/o Lakhe Nagar Dhaal, Mahadev Ghat Road, Raipur, Tehsil And District Raipur Chhattisgarh. Presently R/o Samta Colony, In front of Union Bank, Raipur, Tehsil and District Raipur Chhattisgarh.

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Superintendent of Police Mahasamund, District Mahasamund Chhattisgarh. --- Respondents

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For the Petitioner : Mr.	Surfaraj Khan, Advocate.
For the Respondent : Mr.	Ayaz Naved, Govt. Advocate.

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Hon'ble Shri Justice Goutam Bhaduri

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Order on Board

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15.03.2022

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The challenge in this petition is to the notice dated 24.01.2022 whereby the summons have been issued by the Additional Superintendent of Police Mahasamund to the petitioner to appear on 31.01.2022 at Police Office Mahasamund at 11.30 a.m.

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Learned counsel for the petitioner submits that on a complaint made against the petitioner and others, the Police after investigation filed a report under section 155 of CrPC holding it a non-cognizable offence. Thereafter, the instant notice has been issued. He would submit that without there being any offence registered, the enquiry of like nature cannot be carried out. He placed reliance on an order passed by this Court in WP(Cr.) No. 678 of 2020 (Rajeshwar Sharma Vs. State of Chhattisgarh) decided on 07.06.2021. Therefore he would submit that it amounts to arm-twisting and consequently the respondents be restrained to call the petitioner pursuant to the summons of like nature.

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On earlier occasion when the case came up for hearing, the substantial reason and ground on which the notices were issued were asked from the State. Reply has been filed on behalf of the State and learned State Counsel opposes the arguments of the petitioner.

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This Court in Rajeshwar Sharma Vs State of Chhattisgarh (Supra) has made it clear that the notice of like nature by taking shelter of Section 91 CrPC cannot be issued. At para 18 & 19 this Court held as under:

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“18. Section 91 of the CrPC clearly mandates

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that it is applicable only in case of investigation, inquiry, trial or other proceeding under the Code. The definition of “inquiry” under Section 2(g) of the CrPC does not include preliminary inquiry. By no stretch of imagination, preliminary inquiry before registering FIR would come within the meaning of “proceeding” under the CrPC, as it is only a sort of verification for the limited purpose of ascertaining whether a cognizable offence has been committed as inquiry within the meaning of Section 2(g) must be conducted under this Code by Magistrate or Court, whereas preliminary

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inquiry is to be conducted by Police Officer, otherwise it could have been specifically provided in the CrPC. In my considered opinion, Section 91 of the CrPC has to be construed strictly in order to make it applicable, as the Legislature has confined its applicability to investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure, 1973. Preliminary inquiry, if any, before registration of FIR would not fall within the meaning of other proceeding under section 91 of CrPC. The Legislature has deliberately and consciously applied it and made it applicable to certain specific proceedings specified in Section 91 of the CrPC, such as inquiry, investigation, trial and other proceeding under the Code. Thus, Section 91 of the CrPC cannot be stretched and made applicable to preliminary inqury that is prior to registration of FIR as recognized by the Supreme Court in Lalita Kumari Vs. Govt. of U.P. (2014) 2 SCC 1.

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Therefore, in the considered opinion of this Court, since there is neither any proceeding nor any trial or any other proceeding pending in the Court, issuance of notice to the petitioner vide Annexure P-1 is without jurisdiction and without authority of law. Section 91 of the CrPC is admittedly not applicable to the accused as held by the Supreme Court in State of Gujarat Versus Shyamlal Mohanlal Choksi's AIR 1965 SC 1251 and further followed by the Supreme Court in the matter of Central Bank of India v. State of Kerala 2010 AIR SCW 2436 . But the question that since no offence has been registered against the petitioner and the petitioner is only a prospective accused, whether Section 91 would be applicable or not is purely academic, has to be answered in appropriate proceeding, as in this case it has already been held that Section 91 of CrPC is not attracted to the facts of the present case.”

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A perusal of the document filed with the petition shows that a proceeding u/s 155 CrPC was drawn wherein no cognizable offence was reported. However, again thereafter notices are issued to the petitioner from the office of Additional

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Superintendent of Police to appear in person. The reply of the State since falls back on the ground that the notices have been issued u/s 91 CRPC, the clear mandate exists about the law that the notices of like nature cannot be issued. Accordingly, the notices so issued are not appreciated rather it makes the Court to draw an inference.

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Under the circumstances, the notice (Annexure P-1) dated 24.1.2022 whereby the petitioner was asked to appear is hereby quashed. Accordingly, the petition is allowed.

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Sd/GOUTAM BHADURI JUDGE

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Rao

Kaushalya Bai v. State of Chhattisgarh

Case brief

What is this about?

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Kaushalya Bai v. State of Chhattisgarh

Case brief

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