The Delhi High Court has reiterated that Police can issue notice for compelling attendance to witness under Section 160 Cr.P.C. only after registration of FIR and not before the registration of case.
The single-judge bench of Justice Chandra Dhari Singh also observed that Police can only issue notice requiring attendance of any person who is within the limits of his own Police Station or that of an adjoining Station.
Brief Facts of the Case
The petitioner- Advocate has challenged the summons issued by Cyber Crime Branch. The complaint as appended with the Police Station contains allegations against the petitioner and one other for offences under Section 153A/501/504/505/295A/506 IPC and Section 67 IT Act.
It was submitted by the Senior Counsel on his behalf that the impugned summons/notices have been issued in sheer abuse of process of law, are wholly untenable, unwarranted as Section 160 Cr.P.C. provides for issuance of notice for compelling attendance to witness in a pending FIR and not before the registration of case .
It was further submitted that the impugned summons are without jurisdiction since the said summons under Section 160 of Cr.P.C. have been issued by the concerned Police Station from District S.A.S. Nagar, whereas, the petitioner, who lives in Delhi, does not fall within the jurisdiction of the said Police Station.
He contended that the allegations of defamation against the petitioner do not pertain to the complainant and the complainant himself is not aggrieved in any manner whatsoever, and hence, has no locus standi to file the complaint against the petitioner. The complaint has been filed to falsely implicate him and is based upon frivolous, ill-founded and misconceived grounds only to harass the petitioner.
High Court's Observation
After analysing the relevant statute and facts, the Court opined that a police officer may require attendance of a person who is apparently acquainted with the facts and circumstances of a case that such police officer is investigating and thus summons/notice to such a person can be issued following the due process and procedure of law.
The extent of this power is, however, limited by the bounds of jurisdiction as the concerned police officer may issue notice requiring attendance of any person who is within the limits of his own Police Station or that of an adjoining Station, the Court sated.
"The provision says that a Police Officer making investigation may require attendance of “any person being within the limits of his own or any adjoining station”, thereby, clearly and unequivocally setting limits to the jurisdiction within which the police officer is permitted to act."
The Court found summons in the present matter to be extra-jurisdictional in view of the above.
Answering as to what stage a Notice under Section 160 Cr.P.C. can be issued, it pointed out the words used under the provision, which are "police officer making investigation‟.
"Section 2(h) of the Cr.P.C. includes all proceedings under the Cr.P.C. for collection of evidence under the ambit of investigation. In the present case, the concerned authority received the complaint made by the complainants wherein several allegations were made by them against the petitioner and the other prospective co-accused and upon receiving the complaint, it issued summons under Section 160 of the Cr.P.C. giving opportunity to the petitioner to appear personally for further enquiry into the complaint and the allegations leveled in it."
In the present matter, the Police summoned the petitioner at the stage of preliminary inquiry, giving him opportunity to adduce oral as well as documentary evidence in pursuance to the complaint received by it.
Whether the preliminary enquiry amounted to investigation or not?
To answer this, the Court referred to Samaj Parivartana Samudaya Vs. State of Karnataka, 2022 Latest Caselaw 469 SC and Lalita Kumari Vs. Govt. of U.P. & Ors., 2013 Latest Caselaw 779 SC
The inference deduced was that summons/notices under section 160 of the Cr,P,C, can be issued by a Police Officer who is making investigation under and in accordance with the provisions of the Cr.P.C., and to set into motion such an investigation there is a pre-requisite of registration of FIR.
"Without registration of FIR, an investigation cannot be said to have been initiated. Further, even for an enquiry to be held legal and valid, the Police Officer has to act in accordance with provisions of the Cr.P.C. and he may not act beyond his powers by conducting a preliminary enquiry without making a report to a Magistrate."
In view of the above, the Court noted that in the present case,
neither the investigation nor an enquiry was validly/ legally being
carried out by the concerned authority even for the limited purposes of
issuing a notice under section 160 of the Cr,P,C,
The petition was accordingly allowed and impugned summons were therefore quashed.
CASE TITLE: KULVINDER SINGH KOHLI vs STATE OF NCT OF DELHI & ORS
CASE DETAILS: W.P.(CRL) 611/2022
CORAM: Justice Chandra Dhari Singh
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