The Judgment of the Court was delivered by

V. Eswaraiah, J.:— The 1st respondent in this appeal is the writ petitioner and the 7th respondent in the Writ Petition is the appellant in this Writ Appeal. For the sake of clarity, the parties are referred to in this appeal as arrayed in the Writ Petition.

2. The petitioner filed the Writ Petition No. 7561/97 for issuance of a Writ of Mandamus to declare the action of respondents 1 to 6 in registering crimes under Section 420 and 406 of Indian Penal Code against the Petitioner in FIRs 14/97, 137/97 and 77/97 as illegal and quash the investigation initiated under the said FIRs. The learned Single Judge allowed the Writ Petition by an order dated 06/08/1997 and quashed the FIRs and the petitioner, who was in judicial custody, was set at liberty. Questioning the said order of the learned single Judge, this Writ Appeal is filed by the 7 respondent in the Writ Petition. A Division Bench of this Court while staying the impugned judgment by order dated 01/10/1997 to the effect that the investigation shall continue but cognizance shall not be taken by the Court until further orders in the Appeal and in view of the serious debatable issues involved, referred the case for a decision by the Full Bench on the following points:

“(i) Whether there can be interference in the investigation of any case registered for the alleged offences under Sections 405 and 420 IPC on the ground that the alleged offence under Section 420 IPC is not made out on the facts as alleged and the alleged offence under Section 405 IPC stands barred under the specific limitation in respect of certain classes of offences as envisaged under Sections 468 and 469 of the Code of Criminal Procedure, 1973; and

(ii) Whether appeal under clause 15 of the Letters Patent of the Court lies against the judgment in such a case. In other words, whether a proceeding for quashing of investigation in a criminal case under Article 226 of the Constitution of India is a civil proceeding and the judgment as above is a judgment in a civil proceeding in exercise of the original jurisdiction of the Court for the purposes of appeal under Clause 15 of the Letters Patent.”

3. The contention of the petitioner in the Writ Petition was that the registration of the crime in FIR No. 14/97 dated 05/02/1997 by the Station House Officer, Town - III Police Station, Nizamabad, at the behest of the complaint given by the 7 respondent for the offence punishable under Section 420 and 406 of Indian Penal Code is illegal and without sanction of law. It is stated that the alleged offence is said to have taken place 7 years prior to the registration of the crime and the averments made in the FIR are false and do not disclose any cognizable offence warranting investigation or enquiry under Section 157 of Criminal Procedure Code. It is further stated that the 8 respondent - Mr. Kummari Kistaiah also filed another complaint which has been registered in FIR No. 137/97 for the same alleged transaction and one more crime was also registered by P.S Armoor in FIR No. 97/97 for the same offence with very same transaction which was shown in FIRs 14/97 and 137/97. It is further stated in the affidavit that about 4 or 5 cases other than the said 3 cases have also been registered against the petitioner at various places in Nizamabad District with regard to the very same transaction. The petitioner stated that the de facto complainant has no locus standi to maintain the complaint on behalf of the alleged 135 persons and the complainant has not disclosed the names and identity of the villagers on whose behalf the crime is sought to be registered and there is no material evidence about the collection of payment or the amounts by the petitioner on 10/08/1989 or any other subsequent dates and there is no documentary evidence with reference to various alleged transactions said to have taken place between de facto complainant and the petitioner. It is further stated in the writ affidavit that the complaint itself discloses that the visas were obtained and arranged, and therefore, further investigation is not justified if the said visas were not utilised for whatever reason. The complaint is vague and its contents are unreliable and there could be no investigation on such vague, inconsistent and baseless averments which are not supported by any evidence. The cheques alleged to have been dishonoured by the bankers of the petitioner have not been filed and the 4 respondent did not take sufficient care while starting the investigation under Section 157 Criminal Procedure Code. On this and other grounds, the petitioner filed the Writ Petition to quash the aforesaid 3 FIRs as unwarranted and abuse of process of law.

4. The 7 respondent filed a complaint on 05/02/1997 stating that he has collected 3,10,000/- from the villagers of Nizamabad District and paid the same to the petitioner on 10/08/1989 for arranging visas for 15 persons and subsequently on 19-5-1990, 23-06-1990, 04-07-1990 and 10-07-1990 an amount of Rs. 3,10,000/-, Rs. 4,05,000/-, Rs. 3,30,000/- and Rs. 3,80,000/- respectively paid to the brother of the petitioner, who represented the petitioner, in the presence of two persons of Nizamabad District and obtained acknowledgement to that effect and thus the total amount paid to the petitioner, who has agreed to get visas for all 135 persons and in fact the petitioner arranged 135 visas through Rapco General Construction Projects, Abudhabi, which were valid for two months, but due to Gulf War the villagers were not taken to Abudhabi and the period of visas were expired. Thereafter, the complainant approached the petitioner for getting renewal of the visas, and handed over the visas to the petitioner, who has agreed to get renewal of the same and asked the complainant to contact after one month. Accordingly, the complainant went to Bombay. But he could not meet the petitioner or his brother as they have shifted their premises. Therefore, the complainant had to go to Abudhabi and enquire with the Rapco General Construction Project, who told the complainant that the petitioner had handed over the visas and taken the entire amounts. Later on, the complainant met the petitioner and forced him to pay entire amounts. The petitioner and his brother issued post-dated cheques which were returned by the bank officials as there was no balance in the accounts. After that, the complainant demanded them for payment of the amount, but later the petitioner and his brother shifted their office, and therefore, he could not contact them. Thus, it is stated in the complaint that the petitioner collected a total amount of Rs. 17,95,000/- from Rapco and General Construction Project, Abudhabi and did not return the same either to the complainant or to the villagers and thus the petitioner cheated the innocent villagers and the complainant is paying some of the amounts of the villagers by selling his personal properties and requested to take action against the petitioner for cheating. On the said complaint, FIR 14/97 was registered on 05-02-1997 under Sections 420 and 406 of IPC. The 6 respondent i.e, Station House Officer, Town- I Police Station, Nizamabad registered Crime No. 113/97 under Section 420 of IPC on the complaint given by one Kummari Kistaiah - 8 Respondent in the Writ Petition. During the course of investigation on 4-3-1997, the accused - Writ Petitioner was arrested in Bombay and he was sent for judicial remand on 5-3-1997. In the remand Case Diary of FIR 14/97 dated 5-3-1997, it is stated that when the accused was apprehended on 03-03-1997 at his residence at Irla, Bombay and interrogated, the petitioner confessed that he has given authority to his brother Sitaram C. Amin for money transaction and as such his brother collected the amounts from the complainant-Gangaram Kandaram and cheated him to a tune of Rs. 17,95,000/-.

5. The Writ Petition was filed on 04-04-1997 and it appears that even before notices were served on all the respondents and even before any counters were filed, the writ petition was allowed on 06-08-1997. A reading of the judgment of the learned Single Judge shows that only the petitioner and the Government Pleader for Home alone were heard and respondents 7 and 8 were not heard. The learned Judge came to the conclusion on the facts of the case that the First Information Reports made out an offence under Section 405 of IPC only. There is no discussion as to how Section 420 is not attracted. The learned Single Judge opined that a case is made out only under Section 405 of IPC, which offence is punishable with imprisonment for 3 years and the limitation for taking cognizance under Section 468 is only 3 years. The commencement of the limitation under Section 469 of Criminal Procedure Code is the date on which the complainant first came to know about the offence. In the present case, since the First Information Reports had disclosed that the complainant came to know about the offence in 1990, the cognizance is barred by limitation. The contention of the learned Government Pleader for Home that the question has to be considered only after the charge sheet is filed, was rejected and the First Information Reports were quashed.

6. As regards the first question is concerned, principles have been enunciated by Supreme Court in a series of decisions relating to the exercise of extraordinary power under Article 226 or inherent powers under Section 482 of Criminal Procedure Code. In the case of State of Haryana v. Bhajanlal (1992 SCC (Cri) 426), the Supreme Court stated the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly define and sufficiently channelise and inflexible or rigid formula and to give a exhaustive list of myriad kinds of cases wherein such power could be exercised:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

7. In the aforesaid judgment, the Supreme Court cautioned that the power of quashing criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra-ordinary or inherent powers do not confer arbitrary jurisdiction on the Court to act according to its whim and caprice.

8. In Rashmi Kumar (Smt) v. Mahesh Kumar Bhada) 415) it was observed:

“The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court.

9. In State of H.P v. Pirthi Chand (1996 SCC (Cri) 210), it was observed that when the remedy under Section 482 Criminal Procedure Code is available, the High Court would be loathe to exercise its extraordinary power under Article 226. Of course, in the present case, no charge sheet has been filed and Section 482 cannot be invoked.

10. Recently, the Supreme Court in the case of Rajesh Bajaj v. State NCT of Delhi (1999 SCC (Cri) 401) held that it is not necessary that a complaint should verbatim reproduce in the body the ingredients of offence of Section 420. If the factual foundation for the offence has not been laid in the complaint, the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR, the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. Bhajanlal case is followed in many subsequent cases by the Supreme Court including the aforesaid case of Rajesh Bajaj and the cases of State of H.P v. Pirthi Chand (1996 SCC (Cri) 210, State of U.P v. O.P Sharma (1996 SCC (Cri) 497), Rashmi Kumar (Smt) v. Mahesh Kumar Bhada) 415) and in the case of Rupan Deol Bajaj (Mrs.) v. Kanwar Pal Singh Gill (1995 SCC (Cri) 1059).

11. In this case no counter was filed and the records of further investigation was not submitted and while the investigation was under progress, the FIRs were quashed. Unless the investigation is completed, material evidence is gathered by examining different peril sons and authorities with regard to the collection of money, return of visas and the cheques issued by the petitioner and his brother, it cannot be said that the FIRs are without any basis and the petitioner has to be discharged for the accusation under Section 420 and 406 of IPC. The complaint cannot be treated as a charge sheet. Based on the complaints, FIRs were issued. Unless further investigation is made and charge sheet submitted, it is difficult to come to a definite conclusion. The power under Article 226 of the Constitution of India ought not to be invoked in such a case. On the facts of and circumstances of the case, the learned single Judge was not justified in holding that it is a fit case under Article 226 of Constitution for quashing the FIRs.

12. Unless the investigation is completed, it cannot be presumed that the complaint does not make out offences under Section 420 and 406 of IPC or that the alleged offence falls under Section 405 IPC only and that prosecution is barred by limitation under Section 468 and 469 Criminal Procedure Code. It is not known when the petitioner collected the money from Rapco General Construction Projects, Abudhabi and when the cheques were issued by the petitioner to the complainant and when the limitation starts. The plea of limitation depends on the nature of offence and the commencement of the period of limitation and moreover, whether there could be exclusion of time under Article 470. These questions are mixed questions of law and fact. It would be wholly improper to exercise jurisdiction under Article 226 even before the investigation is completed and decide these partly legal and partly factual questions. We hold that on the averments made in the writ affidavit the Court under Article 226 of the Constitution cannot decide at this stage that the alleged offence falls under Section 405 only and quash the FIR as barred by limitation. It is, however, open to the respondents to seek discharge before the charge is framed or move the High Court for quashing on relevant grounds thereafter.

13. With regard to the second question as to whether the appeal under clause 15 of Letters Patent of the Court lies against the judgment in such a case. In other words, whether the proceedings for quashing of the investigation in a criminal case under Article 226 of the Constitution is a civil proceeding and the judgment as above is a judgment in a civil proceeding in exercise of the original jurisdiction of the Court for the purpose of appeal under clause 15 of Letters Patent.

14. As per Clause 15 of Letters Patent, no appeal shall lie against the judgment of one Judge of the said High Court or one Judge of any Division Bench passed in exercise of appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in exercise of the revisional jurisdiction and not being a sentence or order passed or made in exercise of power of superintendence of Section 107 of Government of India Act or in exercise of criminal jurisdiction. An appeal shall lie to the Division Bench under Clause 15 of Letters Patent from the judgment of one Judge of the High Court or one Judge of any Division Bench. The appeal from Judgments of Single Judges of the High Court shall lie to the Division Bench except the judgments prohibited by Clause 15. The learned single Judge while exercising the extra-ordinary jurisdiction under Article 226 quashed the criminal proceedings. In our view, the exercise powers under Article 226 of the Constitution by issuing a writ in quashing the FIR is not in exercise of criminal jurisdiction. No doubt against the order under Section 482 of Criminal Procedure Code or against the proceedings under Contempt of Court, no appeal will lie under Clause 15 of Letters of Patent, but against the judgments quashing the FIR is in exercise of the original jurisdiction of the Court under Article 226, Writ Appeal lies under Clause 15 of Letters Patent. Issuing a writ of mandamus or certiorari by the High Court under Article 226 pertaining to a criminal complaint or proceeding cannot be said to be an order passed in exercise of the criminal jurisdiction. Therefore, we hold that an appeal lies under Clause 15 of Letters Patent.

15. The learned counsel for the appellant relied upon a judgment of Madras High Court in Re. S. Govindaswamy Nathan (AIR 1955 Madras 121). That case arose out of contempt proceedings in respect of a criminal sessions jurisdiction of the High Court but not against an order passed under Art. 226 of Constitution of India, and therefore, the said judgment has no application to the facts of the present case. We accordingly answer the second question that an appeal under clause 15 of Letters Patent of the Court lies against the judgment in such a case.

16. For the foregoing reasons, we allow the Writ Appeal, set aside the order of the learned Single Judge.

17. No costs.