Tilly Gifford v. Michael Floyd Eshwar, (SC) BS890759

Tilly Gifford v. Michael Floyd Eshwar, (SC) BS890759 SUPREME COURT OF INDIA

Before:-Ranjan Gogoi, L. Nageswara Rao and Navin Sinha, JJ.

Criminal Appeal No. 1297 of 2017 (Arising Out of SLP (Crl.) No. 3555 of 2015) and Special Leave Petition (Crl.) No. 6389 of 2015. D/d. 1.8.2017.

Tilly Gifford - Appellants

Versus

Michael Floyd Eshwar & Anr. - Respondents

For the Petitioners:- Rajesh Mahale, Anirudh Sanganeria, R.D. Upadhyay, Mohd. Shahid Hussain, Advocates.

For the Respondents:- Mahesh Jethmalani, Sr. Adv., Ms. Chaitra Pawar, Ravindra Keshavrao Adsure, Joseph Aristotle S., Ms. Priya Aristotle, Ashish Yadav, Ms. Romsha Raj, Ravindra Keshavrao Adsure, S. Jayarm Bhatt, Siddheshwar Biradar, Advocates.

IMPORTANT

Power of High Court to interdict a criminal proceeding at the stage of investigation is rare.

A. Criminal Procedure Code, 1973 Section 482 Power of High Court under Section 482- Quashing of criminal proceedings - Broadly speaking, a criminal investigation, unless tainted by clear malafides, should not be foreclosed by a Court of Law.

[Para 4]

B. Criminal Procedure Code, 1973 Section 482 Quashing of criminal proceedings - Challenged - Findings of inquiry indicating that material facts surrounding lodging of FIR and its authenticity needs to be investigated and unravel truth - FIR in question should be fully investigated in accordance with law and thereafter further legal consequences as may be warranted should be allowed to take effect - Directions to complete investigation within sixty days - impugned order of High Court illegal and set aside.

[Para 9]

ORDER

SLP(Crl.) No. 3555 of 2015.

Leave granted.

2. The High Court of Karnataka by its order dated 19.06.2014 interdicted the investigation of a criminal proceeding and after a lapse of almost eleven months i.e. on 22.05.2015 made available its reasons for the impugned conclusions. The correctness of the said view has been assailed before us in the present appeal.

3. We have heard the learned counsels for the parties.

4. A perusal of the order of the High Court released on 21.05.2015 would indicate that the High Court has gone far beyond the contours of its power and jurisdiction under Section 482 Cr.P.C., 1973 to quash a criminal proceeding, the extent of such jurisdiction having been dealt with by this Court in numerous pronouncements over the last half century. Time and again, it has been emphasised by this Court that the power under Section 482 Cr.P.C., 1973 would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly speaking, a criminal investigation, unless tainted by clear mala fides, should not be foreclosed by a Court of Law.

5. It is perhaps upon realization of the limited parameters of High Court's jurisdiction, that Shri Mahesh Jethmalani, learned senior counsel for the respondent-accused, has in all fairness confined his arguments to what the learned counsel comprehends to be the core issue, namely, whether there was any F.I.R. in existence in law so as to enable an investigation to be undertaken.

6. Apart from drawing our attention to the initial complaint dated 02.03.2013, which was registered as a petition by the jurisdictional police station and the F.I.R. registered on 11.03.2013, Shri Jethmalani has read out the statements of Smt. Sharadhadevi, Shri S.E. Nagesh, Shri Vasudev, Shri G. Udaya Ravi and Shri G.N. Mohan made in the course of inquiry proceedings held pursuant to the impugned order of the High Court. On the basis of the aforesaid statements, it is contended that it is clear and evident that there was no valid F.I.R. lodged to be registered as a criminal offence for investigation.

7. We are afraid, we do not agree with what has been very forcefully argued on behalf of the respondent-accused.

8. On a consideration of the statements of the persons examined in the course of investigation, referred to above, as well as the statements of other such persons examined, findings were recorded by the Enquiry Officer in his report submitted to the High Court which, inter alia, is to the following effect:-

"On 2.3.2013, a complaint was lodged with Nazarbad PS of Mysore City by Eward Joubert Vaningen wherein he was accompanied by Tilly Gifford, Ajit Lobo and Marina Meyn. The then PI, Nazarbad police station Mr. Mohan did not act on the complaint immediately and the same complaint was considered only on 11.3.2013 at 18.45 hours wherein a criminal case was registered vide Nazarbad police station Cr.No.46/13 under Section 403/409/420 and 464 I.P.C. The original complaint of Edwin Joubert Vaningen was missing from the case file. Serious procedural lapses in registration of the FIR was seen and the misplaced original complaint and the delay in the registration of the FIR till 11.3.2013 (day prior to the death of Edwin Joubert Vaningen) raise serious doubts regarding the reasons for such delay. The delay in taking action on the complaint of Edwin Joubert Vaningen between 2.3.2013 to 11.3.2013 only benefits Michael Floyd Eshwer. The delay and the advantage it gives to Michael Floyd Eshwer would safely permit us to conclude that omission and commissions by then PI of Nazarbad police station Mr. Mohan and the then DCP Shri Basavaraj Malagatti were at the behest of Michael Floyd Eshwer."

9. We have extracted the aforesaid findings (which clearly appear to be against the respondent-accused) only to highlight the fact that the statements on which reliance has been placed have been appreciated by the Inquiry Officer and conclusions have been drawn and reached, which fact would be suggestive of an imminent requirement of appreciation of materials to be unravelled by a proper investigation so as to arrive at the necessary findings on the core issue i.e. the legal existence of a valid F.I.R. However, taking into account the fact that the inquiry was conducted pursuant to the order of the High Court to unravel the truth surrounding the lodging of the F.I.R. and was not a step in the investigative process which, in any case, has been interdicted by the High Court by the impugned order, we do not consider it prudent to come to one conclusion or the other with regard to the said findings. However the findings of the inquiry would clearly indicate that a large volume of material facts surrounding the lodging of the F.I.R. and its authenticity needs to be investigated and the truth unravelled. But this is what has been interdicted by the High Court. In the above situation, we find ourselves unable to agree with the view taken by the High Court. On the contrary, we are of the opinion that the F.I.R. in question should be fully investigated in accordance with law and thereafter further legal consequences as may be warranted should be allowed to take effect. We order accordingly and direct the completion of the investigation within sixty days from today, where after steps in accordance with law will follow.

10. We consequently set aside the order of the High Court dated 19.06.2014 released on 22.05.2015 and dispose of the appeal in the above terms.

SLP(Crl.) No. 6389 of 2015

In view of the findings recorded in the inquiry report (at page 82 of the typed copy furnished to the Court) which has been extracted in the order of Criminal Appeal arising out of SLP(Crl.) No. 3555 of 2015, the special leave petition (Crl.) No. 6389 of 2015 is dismissed.