(September 2011)
The Narendra Modi Government has fallen to a new low. The arrest of Sanjeev Bhatt for alleged offences u/s. 183, 189, 193, 195, 341 and 342 IPC is nothing less than the state’s victimization of a good citizen. It calls for president’s rule because the State is clearly acting like a terrorist here. I don’t understand why the Congress is silent? Why president’s rule has not been imposed yet?
I admit that I have got information about the offenses mentioned above from the media sources, so they have not been authenticated; however, I believe the media sources to be correct. It is also to be mentioned that a Criminal Writ Petition no. 135/11 is also pending in the Supreme Court with respect to these matters; however, I am neither aware of the prayers made in the petition nor of the contents of the petition. Nonetheless, out of the offenses mentioned above, the offenses u/s. 183, 189, 193 & 195 IPC are non-cognizable offences; and, except for s. 195, they are also bailable offences; the offences u/s. 341 and 342 IPC are also bailable offences. Sanjeev Bhatt has not been released on bail, which means the arrest has been made with respect to offence u/s. 195 IPC, which is completely illegal as follows.
Let me first mention that the offence u/s. 195 IPC is an offence of which, as per s. 195(1)(b) CrPC, no court can take cognizance without a complaint u/s. 340 CrPC in writing from the court concerned. So, in the above case, the offence u/s 195 IPC can’t be treated as a cognizable offence u/s 155(4) CrPC by clubbing it with the s. 341 and 342 IPC offenses as then the investigation so carried out by the police will not satisfy the provisions of s. 340 CrPC as, under s. 340 CrPC, the enquiry has to be made by the court concerned.
I agree that, in State of Punjab v. Raj Singh (Re: State of Punjab vs Raj Singh, AIR 1998 SC 768; download the judgment from http://indiankanoon.org/doc/631114/), it has been held that “the statutory power of the police to investigate under the code [i.e. CrPC] is not in any way controlled or circumscribed by Sec 195 CrPC”, and the Supreme Court further held, “it is of course true that upon the charge-sheet [challan], if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filling a complaint for the offence on the basis of the FIR [filed by the aggrieved private party] and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC.”
In effect, the Supreme Court deemed the investigation carried out by the police as an enquiry carried out u/s 340 CrPC; however, the investigation carried out by the police for being deemed as an enquiry u/s. 340 CrPC has to be a legal investigation, not just any investigation. Section 155(4) CrPC gives power to the police to treat a non-cognizable offence as a cognizable offence in the circumstances mentioned therein and investigate into it without an order from the magistrate concerned; however, s.155(4) CrPC can’t be extended to a case where the investigation carried out by the police is a deemed enquiry u/s. 340 CrPC as the court concerned which ought to make the complaint u/s. 340 CrPC may not have the opportunity to treat a non-cognizable offence as a cognizable offence u/s. 155(4) CrPC; and even when it has an opportunity to do so; i.e., when a common enquiry under s. 340 CrPC is to be carried out for a cognizable offence and a non-cognizable offence; it can’t do so because s. 155(4) CrPC does not apply to an enquiry under s. 340 CrPC as it applies only to a pure police investigation.
The police’s power to investigate suo moto arises only in the case of a cognizable offence. In the case of a non-cognizable offence, the police have no power to investigate without the order from the magistrate concerned, and even then the police can’t arrest without warrant. The investigation being carried out by the police in this case is completely illegal as non-cognizable offences u/s. 183, 189, 193 & 195 IPC have been clubbed with cognizable offences u/s. 341 and 342 IPC, thus treating all of them as cognizable offences. Thus, the arrest of Sanjeev Bhatt in the course of such illegal investigation is also illegal. It is a clear case of the usurpation of the power of the court concerned, i.e. the Supreme Court, by the police in order to make an arrest and harass a good citizen. It is unbelievable! What is it if not victimization!
If all the facts that I have stated above on my belief of the media reports are true, Modi has no right to be Chief Minister, and the BJP has no right to rule Gujarat. It is time for President’s rule in Gujarat. ©2011-2015 Ankur Mutreja