शिमला। प्रदेश हाईकोर्ट ने पूर्व मुख्यमंत्री प्रेम कुमार धूमल और उनके बेटे अनुराग ठाकुर को कड़ा झटका देते हुए एचपीसीए मामले में विजीलेंस की ओर से 1 अगस्त 2013 को दायर एफआईआर को रदद करने की गुहार को खारिज कर दिया है। उधर विजीलेंस ने इस मामले में तुरत फुरत चालान भी पेश कर दिया […]
शिमला। प्रदेश हाईकोर्ट ने पूर्व मुख्यमंत्री प्रेम कुमार धूमल और उनके बेटे अनुराग ठाकुर को कड़ा झटका देते हुए एचपीसीए मामले में विजीलेंस की ओर से 1 अगस्त 2013 को दायर एफआईआर को रदद करने की गुहार को खारिज कर दिया है। उधर विजीलेंस ने इस मामले में तुरत फुरत चालान भी पेश कर दिया है।हाईकोर्ट के कार्यकारी मुख्य न्यायाधीश मंसूर अहमद मीर ने इस मामले में फैसला 5 अप्रैल को सुरक्षित रखा था। उन्होंने आज अपना फैसला सुना दिया। यहां पढ़े हाईकोर्ट का पूरा फैसला
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 6 of 2014
Reserved on: 07.04.2014
Decided on: 25.04.2014
Himachal Pradesh Cricket Association & another …Petitioners.
Versus
State of Himachal Pradesh & others …Respondents.
Coram
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Acting Chief Justice.
Whether approved for reporting? Yes.
For the petitioners: Mr. P.S. Patwalia, Senior Advocate, with
M/s. Abhinav Mukerji, Parshotam
Chaudhry & Vikrant Thakur, Advocates.
For the respondents: Mr. Shrawan Dogra, Advocate General,
with Mr. Anup Rattan, Mr. Romesh
Verma & Mr. V.S. Chauhan, Additional
Advocate Generals, and Mr. Kush
Sharma, Deputy Advocate General.
Mansoor Ahmad Mir, Acting Chief Justice
By the medium of this petition, the petitioners have
invoked the jurisdiction of this Court in terms of Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
“CrPC”) for quashing FIR No. 12 of 2013, dated 1
st
August, 2013,
registered at Police Station Dharamshala, under Sections 406, 420,
120B of the Indian Penal Code (hereinafter referred to as “IPC”)
and Section 13 (2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as “PC Act”), on the grounds taken in the
memo of petition.
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2. This petition came up for consideration before one of
the Coordinate Benches of this Court on 7
th
January, 2014 and
was deferred with the observation that the case be listed before
another Bench subject to the orders of the Chief Justice.
Thereafter, the petition came up for consideration before another
Bench on 9
th
January, 2014 and was adjourned with liberty to
make a mention before the learned Vacation Judge. On 24
th
January, 2014, the learned Vacation Judge asked the petitioners to
seek appropriate orders from the Chief Justice qua listing being
the pending matter. It appears that this order was questioned by
the petitioners before the Apex Court and the Apex Court, after
hearing the parties, passed the following order:
“The substance of the matters is that an
application filed by the petitioners herein under
Section 482 CrPC could not be heard by the High
Court of Himachal Pradesh for various reasons
including that two of the Hon’ble Judges declined
to hear the matter. Therefore, there is a prayer in
T.P. (Crl.) No. 42 of 2014 to transfer the Cr.MMO
No. 6/2014 titled as “Himachal Pradesh Cricket
Association & Anr. Vs. State of Himachal Pradesh
before the High Court of Himachal Pradesh.
After hearing learned counsel for the parties, we
deem it appropriate to request the Hon’ble Chief
Justice of the High Court of Himachal Pradesh to
take up the Cr.MMO No. 6/2014 himself and
dispose of the same expeditiously.
The parties are at liberty to mention the matter
before the Hon’ble the Chief Justice of the High
Court.
In view of the above observations, the special
leave petition and transfer petition stands
disposed of.
In view of the disposal of the special leave
petition and transfer petition, no order is
required to be passed by this court in I.A. No.
3971/2014 in T.P. (Crl.) No. 42 of 2014 and
CrlMP No. 3937/2014 in SLP (Crl.) No. 963/2014.”
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3. In terms of the orders of the Apex Court, after hearing
the parties, I was asked to hear the petition and no relief was
granted in miscellaneous petitions. The matter came up before
this Court on 4
th
March, 2014, the matter was partly heard with a
direction to the respondents to file latest status of investigation,
which was filed by the learned Advocate General. The matter was
heard on 7
th
April, 2014, and was reserved for judgment.
4. The petitioners have questioned the lodging of FIR on
the following grounds:
1. That it is purely a civil dispute outcome
of civil liability and civil suit is pending
in this Court.
2. That the petitioners have not violated
any law, the leases were executed by the
State in favour of the petitioners and the
State is still the owner. And if the
petitioners have acted in violation of the
terms and conditions of the lease, that
may be ground for cancellation of the
lease(s) and not for lodging an FIR
subjecting the petitioners and other
persons to investigation and to face
criminal trial.
3. That no mens rea is involved, thus, no
criminal case is made out.
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4. That the Cricket Association was ‘a not
for profit society’ and was not converted
into company with ulterior motives.
Thus, the question of wrongful loss or
wrongful gain does not arise at all.
5. That the entire case is politically
motivated, based on Congress charge
sheet, the investigation is monitored by
the Chief Ministerrespondent No. 2
and Special Investigation Team has
been asked to submit the report to the
Chief Ministerrespondent No. 2,
thereby the lodging of the FIR and
conducting of investigation at the
behest of the Chief Ministerrespondent
No. 2 is based on mala fides.
6. That the entire exercise is just to take
over the control of the Cricket
Association.
5. Learned counsel for the petitioners, while addressing
arguments, also argued that the persons allegedly to be involved
in the commission of offences are private persons, thus,
provisions of PC Act are not applicable, is just to harass the
petitioners. He further submitted that the Congress President has
publicly asked petitioner No. 2Anurag Thakur to mend himself
and resultantly all the cases will be withdrawn, including the FIR
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in hand. The civil proceedings are already pending before this
Court and the same subject matter is under investigation. This
Court has already granted status quo ante, which is in force, as on
today. Respondent No. 2 has also filed a civil suit for Damages
against petitioner No. 2 and other persons, which is also pending
before a Civil Court.
6. Learned counsel for the petitioners further argued
that respondent No. 2 had visited the premises of petitioner No. 1
and had made an entry in the visitors’ book with a word of
appreciation. All the documents have been prepared as per the
rules and regulations occupying the field. No demand certificates
have been issued by the competent Authorities. The petitioners
have complied with all the terms and conditions applicable and
have not committed any breach. The first lease, second lease and
even the supplement lease were made after due approval of the
Competent Authority. The case, i.e. FIR, is outcome of political
vendetta and prayed that the FIR be quashed.
7. Learned counsel for the petitioners also argued that
no notice has been issued so far and the stand of the respondents
is not known. He has prayed that notice be issued and
respondents be asked to file reply enabling the petitioners to meet
out the defence of the respondents and further prayed that till
reply is filed, investigation be stayed.
8. While spelling out his arguments, learned counsel for
the petitioners, has relied upon the various judgments including
State of West Bengal and others versus Swapan Kumar Guha
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and others, reported in (1982) 1 Supreme Court Cases 561;
Union of India and others versus Sushil Kumar Modi and others,
reported in (1997) 4 Supreme Court Cases 770; National Small
Industries Corporation Limited versus State (NCT of Delhi) and
others, reported in (2009) 1 Supreme Court Cases 407; Dalco
Engineering Private Limited versus Satish Prabhakar Padhye
and others, reported in (2010) 4 Supreme Court Cases 378;
Commissioner of Income Tax versus Rita Mechanical Works,
reported in (2012) 344 ITR 544 (P&H) and GHCL Employees
Stock Option Trust versus India Infoline Limited, reported in
(2013) 4 Supreme Court Cases 505.
9. Learned Advocate General, while rebutting the
arguments, argued that the FIR was lodged, which was made in
terms of a complaint and the investigating agency, while
conducting the investigation, came to the conclusion that
eighteen persons are, prima facie, found to have been involved in
the commission of offences punishable under various provisions
of IPC and PC Act.
10. Learned Advocate General, while advancing
arguments, has argued that all the documents, No Objection
Certificates and other certificates were obtained fraudulently and
with a criminal intention. Further argued that conversion of the
said society to a company is with ulterior motives just to cause
wrongful gain to the petitioners and wrongful loss to the State.
Even the land has been acquired fraudulently, by deception and
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illegal means and thus, the accused have committed criminal
breach of trust. Further argued that they are not only involved in
the commission of offence punishable under Sections 406 IPC, i.e.
criminal breach of trust and misappropriation, but are also
involved in cheating and commission of other offences because
they have obtained documents by deceitful means and managed
lease deeds and other documents fraudulently.
11. Learned Advocate General further argued that a false
affidavit was tendered to obtain a completion certificate of the
Club House and the other constructions. The officers of
Municipal Committee and other officers have misused their
official position. The officers, whose names have figured in
investigation, have prepared false reports by misusing their
official position in order to cause wrongful loss to the Government
and wrongful gain to the petitioners and other accused.
12. Respondents have submitted a status report in terms
of the court directions, which contains details of the investigation
conducted. It contains the allegations how the officers are
involved, how petitioner No. 2 and other persons played their
illegal acts and activities, managed the documents and other
certificates. It is also stated in the status report that Shri R.S.
Gupta, the then Deputy Commissioner, has categorically
prepared a report ignoring the report of Divisional Forest Officer,
who had assessed value of the trees as 50 lacs at that point of time,
thereby causing wrongful loss to the Government and wrongful
gain to Himachal Pradesh Cricket Association.
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13. The report further discloses that Shri Deepak Shanan,
the then Revenue Secretary, provided a helping hand to the
alleged accused for granting permission to set up and run a
commercial hotel and the matter was not taken to the Cabinet,
which was in violation of Schedule 20 of the Himachal Pradesh
Rules of Business. The report also contains how Himachal
Pradesh Cricket AssociationSociety was merged into a company
just to prevent the State Government from controlling it.
14. The conspiracy was hatched not only by petitioner
No. 2Anurag Thakur and other persons, but also in connivance
with officers/officials of various departments, who are also
figuring as coaccused in the said police report in terms of Section
173 CrPC.
15. Before I will thrash and marshal out all points raised
in the petition and the arguments advanced by the learned
counsel for the parties, I deem it proper to give a flashback
wherefrom the powers under Section 482 CrPC have originated.
16. This remedy was available even before Section 561A
of the Code of Criminal Procedure, 1898 (hereinafter referred to as
“the old Code”) was enacted (corresponding to Section 482 CrPC).
In fact, this Section has not given any new powers to the High
Court. This is an inherent power, which is exercised by the High
Court very rarely, sparingly and in rarest of rare cases with due
care and caution.
17. It is apt to reproduce Section 482 CrPC herein:
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“482. Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to
make such orders as may be necessary to give effect
to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the
ends of justice.”
18. While going through the said provision of law, it is
crystal clear that the jurisdiction is very wide and its scope is very
wide also, but as a rule of practice, it is to be exercised rarely,
sparingly, with due care and caution and in rarest of rare cases.
19. The tests have been laid down for invoking this
jurisdiction under Section 482 CrPC by the Apex Court, Privy
Council and other High Courts. While looking the development
of law in relation to the exercise of inherent powers of the Court, it
is profitable to refer to the judgment of the Bombay High Court
reported in AIR 1926 Bom 551, titled as In re. Llewelyn Evans,
wherein it was held that the ‘inherent jurisdiction’ can be
exercised just ‘to prevent abuse of process of law’ and ‘to secure
the ends of justice’.
20. While interpreting ‘inherent jurisdiction’, ‘to prevent
abuse of process of law’ and ‘to secure the ends of justice’, it
means that the Court has to examine the case and make a balance
between the prosecution and the defence, but it is to be discussed
in such a way that it should not amount to appreciation of
evidence and other details at its infancy stage.
21. The Chief Court of Oudh at Lucknow in the case of
S.C. Mitra versus Raja Kali Charan and others, reported in 1928
(3) ILR (Lucknow) 287, held that the limits of the jurisdiction are
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very wide indeed as the language employed by the Legislature in
enacting sections 439 and 561A of the old Code shows; but though
the jurisdiction exists and is wide in its scope, it is a rule of
practice that it will only be exercised in exceptional cases.
22. It is profitable to reproduce the tests laid down in the
case of Hakim Abdul Wali versus KingEmperor, reported in
1934 (9) ILR (Lucknow) 61, herein:
“Ordinarily the High Court will not interfere at
an interlocutory stage of criminal proceedings in
a subordinate court but the High Court is under
an imperative obligation to interfere in order to
prevent the harassment of a subject of the Crown
by an illegal prosecution. It would also interfere
whenever there is any exceptional and
extraordinary reason for doing so. One of the
tests to apply in order to determine whether any
particular case is of that exceptional nature or
not is to see whether a bare statement of the facts
of the case should be sufficient to convince the
High court that it is a fit case for its interference
at an intermediate stage. Another test to be
applied is to see whether in the admitted
circumstances of the case it would be a mock
trial if the case is allowed to proceed. Broadly
speaking the High Court will generally interfere
in the interests of justice and to stop abuse of
process of law.”
23. The Privy Council in a case titled as Emperor versus
Khwaja Nazir Ahmad, reported in AIR (32) 1945 Privy Council
18, held as under:
“………It has sometimes been thought that S.
561A has given increased powers to the Court
which it did not possess before that section was
enacted. But this is not so. The section gives no
new powers, it only provides that those which the
Court already inherently possess shall be
preserved and is inserted, as their Lordships
think, lest it should be considered that the only
powers possessed by the Court are those expressly
conferred by the Criminal procedure Code, and
that no inherent power had survived the passing
of that act. No doubt, if no cognizable offence is
disclosed, and still more if no offence of any kind
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is disclosed, the police would have no authority
to undertake an investigation.”
24. The Allahabad High Court in a case titled Ram Narain
versus Mool Chand and others, reported in AIR (47) 1960
Allahabad 296, held that in order to seek interference under S.
561A of the old Code, three conditions should be fulfilled : (1) the
injustice which comes to light should be of a grave character and
not of a trivial character; (2) the injustice which is noted is of a
clear and palpable character and not of a doubtful character; and
(3) there exists no other provision of law by which the party
aggrieved could have sought relief.
25. The Apex Court in the case of R.P. Kapur versus State
of Punjab, reported in AIR 1960 Supreme Court 866, in para 6 of
the judgment, held as under:
“6. Before dealing with the merits of the appeal it
is necessary to consider the nature and scope of
the inherent power of the High Court under S.
561A of the Code. The said section saves the
inherent power of the High Court to make such
orders as may be necessary to give effect to any
order under this Code or to prevent abuse of the
process of any court or otherwise to secure the
ends of justice. There is no doubt that this
inherent power cannot be exercised in regard to
matters specifically covered by the other
provisions of the Code. In the present case the
magistrate before whom the police report has
been filed under S. 173 of the Code has yet not
applied his mind to the merits of the said report
and it may be assumed in favour of the appellant
that his request for the quashing of the
proceedings is not at the present stage covered by
any specific provision of the Code. It is well
established that the inherent jurisdiction of the
High Court can be exercised to quash
proceedings in a proper case either to prevent the
abuse of the process of any court or otherwise to
secure the ends of justice. Ordinarily criminal
proceedings instituted against an accused person
must be tried under the provisions of the
Code, and the High Court would be reluctant to
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interfere with the said proceedings at an
interlocutory stage. It is not possible, desirable or
expedient to lay down any inflexible rule which
would govern the exercise of this inherent
jurisdiction. However, we may indicate some
categories of cases where the inherent
jurisdiction can and should be exercised for
quashing the proceedings. There may be cases
where it may be possible for the High Court to
take the view that the institution or continuance
of criminal proceedings against an accused
person may amount to the abuse of the process of
the court or that the quashing of the impugned
proceedings would secure the ends of justice. If
the criminal proceeding in question is in respect
of an offence alleged to have been committed by
an accused person and it manifestly appears that
there is a legal bar against the institution or
continuance of the said proceeding the High
Court would be justified in quashing the
proceeding on that ground. Absence of the
requisite sanction may, for instance, furnish
cases under this category. Cases may also arise
where the allegations in the First Information
Report or the complaint, even if they are taken at
their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases
no question of appreciating evidence arises; it is
a matter merely of looking at the complaint or
the First Information Report to decide whether
the offence alleged is disclosed or not. In such
cased it would be legitimate for the High Court to
hold that it would be manifestly unjust to allow
the process of the criminal court to be issued
against the accused person. A third category of
cases in which the inherent jurisdiction of the
High Court can be successfully invoked may also
arise. In cases falling under this category the
allegations made against the accused person do
constitute an offence alleged but there is either
no legal evidence adduced in support of the case
or evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of
cases it is important to bear in mind the
distinction between a case where there is no legal
evidence or where there is evidence which is
manifestly and clearly inconsistent with the
accusation made and cases where there is legal
evidence which on its appreciation may or may
not support the accusation in question. In
exercising its jurisdiction under S. 561A the
High Court would not embark upon an enquiry
as to whether the evidence in question is reliable
or not. That is the function of the trial
magistrate, and ordinarily it would not be open
to any party to invoke the High Court’s inherent
jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation
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made against the accused would not be
sustained. Broadly stated that is the nature and
scope of the inherent jurisdiction of the High
Court under S. 561A in the matter of quashing
criminal proceedings, and that is the effect of the
judicial decisions on the point (Vide : In Re:
Shripad G. Chandavarkar, AIR 1928 Bom 184,
Jagat Chandra Mozumdar v. Queen Empress,
ILR 26 Cal 786, Dr. Shankar Singh v. State of
Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193),
Nripendra Bhusan Roy v. Gobina Bandhu
Majumdar, AIR 1924 Cal 1018 and Ramanathan
Chettiyar v. Sivarama Subramania, ILR 47 Mad
722 : (AIR 1925 Mad 39)).”
26. The Apex Court in the case titled as The State of Uttar
Pradesh versus Mohammad Naim, reported in AIR 1964 (51)
Supreme Court 703, held that the High Court can in the exercise
of its inherent jurisdiction expunge remarks made by it or by a
lower court if it be necessary to do so to prevent abuse of the
process of the court or otherwise to secure the ends of justice; the
jurisdiction is however of an exceptional nature and has to be
exercised in exceptional cases only. The Allahabad High Court in
the case of Ganga Prasad versus State and another, reported in
1965 (1) Cri.L.J. 664, laid down the same principle.
27. The star case dealing with the issue in hand is State of
Haryana and others versus Bhajan Lal and others, reported in
1992 Supp (1) Supreme Court Cases 335. It is apt to reproduce
paras 102 and 103 of the judgment herein:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted
and reproduced above, we give the following
categories of cases by way of illustration wherein
such power could be exercised either to prevent
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abuse of the process of any Court or otherwise to
secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.
1. Where the allegations made in the
First Information Report or the com
plaint, even if they are taken at their
face value and accepted in their en
tirety 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 materi
als, if any, accompanying the F. I. R.
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 Ma
gistrate within the purview of Section
155(2) of the Code.
3. Where the uncontroverted allega
tions made in the FIR or complaint
and the evidence collected in support
of the same do not disclose the com
mission of any offence and make out a
case against the accused.
4. Where, the allegations in the F.I.R.
do not constitute a cognizable offence
but constitute only a noncognizable
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
F.I.R. or complaint are so absurd and
inherently 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 insti
tuted) to the institution and continu
ance of the proceedings and/ or where
there is a specific provision in the
Code or the concerned Act, providing
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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 mali
ciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge.
103. We also give a note of caution to the effect
that the power of quashing a criminal proceeding
should be exercised very sparingly and with cir
cumspection and that too in the rarest of rare
cases; that the Court will not be justified in em
barking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made
in the F.I.R. or the complaint and that the ex
traordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act accord
ing to its whim or caprice.
28. The Apex Court, in the case of Baijnath Jha versus
Sita Ram & Anr., reported in 2008 AIR SCW 4614, held as under:
“5. In dealing with the last case, it is important to
bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is legal
evidence which, on appreciation, may or may
not support the accusations. When exercising
jurisdiction under Section 482 of the Code, the
High Court would not ordinarily embark upon
an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appre
ciation of it accusation would not be sustained.
That is the function of the trial Judge. Judicial
process should not be an instrument of oppres
sion, or, needless harassment. The Court should
be circumspect and judicious in exercising dis
cretion and should take all relevant facts and cir
cumstances into consideration before issuing
process, lest it would be an instrument in the
hands of a private complainant to unleash ven
detta to harass any person needlessly. At the
same time the section is not an instrument
handed over to an accused to short circuit a pro
secution and bring about its sudden death. The
scope of exercise of power under Section 482 of
the Code and the categories of cases where the
High Court may exercise its power under it relat
ing to cognizable offences to prevent abuse of
process of any Court or otherwise to secure the
ends of justice were set out in some detail by this
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Court in State of Haryana v. Bhajan Lal (1992
Supp (I) SCC 335). A note of caution was,
however, added that the power should be exer
cised sparingly and that too in the rarest of rare
cases. ……………”
29. The latest judgment in point of time covering the
issue is Amit Kapoor versus Ramesh Chander and another,
reported in (2012) 9 Supreme Court Cases 460. In this judgment,
the Apex Court has laid down sixteen tests contained in paras 27.1
to 27.16. It is apt to reproduce relevant portion of the judgment
herein:
“27.1. Though there are no limits of the powers of
the Court under Section 482 of the Code but the
more the power, the more due care and caution
is to be exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be exercised very
sparingly and with circumspection and that too
in the rarest of rare cases.
27.2. The Court should apply the test as to
whether the uncontroverted allegations as made
from the record of the case and the documents
submitted therewith prima facie establish the of
fence or not. If the allegations are so patently ab
surd and inherently improbable that no prudent
person can ever reach such a conclusion and
where the basic ingredients of a criminal offence
are not satisfied then the Court may interfere.
27.3. The High Court should not unduly inter
fere. No meticulous examination of the evidence
is needed for considering whether the case would
end in conviction or not at the stage of framing
of charge or quashing of charge.
27.4. Where the exercise of such power is abso
lutely essential to prevent patent miscarriage of
justice and for correcting some grave error that
might be committed by the subordinate courts
even in such cases, the High Court should be
loathe to interfere, at the threshold, to throttle
the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted
in any of the provisions of the Code or any specif
ic law in force to the very initiation or institution
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and continuance of such criminal proceedings,
such a bar is intended to provide specific protec
tion to an accused.
27.6. The Court has a duty to balance the free
dom of a person and the right of the complain
ant or prosecution to investigate and prosecute
the offender.
27.7. The process of the Court cannot be permit
ted to be used for an oblique or ultimate/ulterior
purpose.
27.8. Where the allegations made and as they ap
peared from the record and documents annexed
therewith to predominantly give rise and consti
tute a ‘civil wrong’ with no ‘element of criminal
ity’ and does not satisfy the basic ingredients of a
criminal offence, the Court may be justified in
quashing the charge. Even in such cases, the
Court would not embark upon the critical ana
lysis of the evidence.
27.9. Another very significant caution that the
courts have to observe is that it cannot examine
the facts, evidence and materials on record to de
termine whether there is sufficient material on
the basis of which the case would end in a con
viction, the Court is concerned primarily with
the allegations taken as a whole whether they
will constitute an offence and, if so, is it an abuse
of the process of court leading to injustice.
27.10. It is neither necessary nor is the court
called upon to hold a full fledged enquiry or to
appreciate evidence collected by the investigating
agencies to find out whether it is a case of acquit
tal or conviction.
27.11. Where allegations give rise to a civil claim
and also amount to an offence, merely because a
civil claim is maintainable, does not mean that a
criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section
228 and/or under Section 482, the Court cannot
take into consideration external materials given
by an accused for reaching the conclusion that
no offence was disclosed or that there was possib
ility of his acquittal. The Court has to consider
the record and documents annexed with by the
prosecution.
27.13 Quashing of a charge is an exception to the
rule of continuous prosecution. Where the of
fence is even broadly satisfied, the Court should
be more inclined to permit continuation of pro
secution rather than its quashing at that initial
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stage. The Court is not expected to marshal the
records with a view to decide admissibility and
reliability of the documents or records but is an
opinion formed prima facie.
27.14. Where the chargesheet, report under Sec
tion 173(2) of the Code, suffers from fundament
al legal defects, the Court may be well within its
jurisdiction to frame a charge.
27.15. Coupled with any or all of the above,
where the Court finds that it would amount to
abuse of process of the Code or that interest of
justice favours, otherwise it may quash the
charge. The power is to be exercised ex debito
justitiae, i.e. to do real and substantial justice for
administration of which alone, the courts exist.
{Ref. State of West Bengal & Ors. v.
Swapan Kumar Guha & Ors. [AIR
1982 SC 949]; Madhavrao Jiwaji Rao
Scindia & Anr. v. Sambhajirao
Chandrojirao Angre & Ors. [AIR 1988
SC 709]; Janata Dal v. H.S. Chowd
hary & Ors. [AIR 1993 SC 892]; Mrs.
Rupan Deol Bajaj & Anr. v. Kanwar
Pal Singh Gill & Ors. [AIR 1996 SC
309; G. Sagar Suri & Anr. v. State of
U.P. & Ors. [AIR 2000 SC 754]; Ajay
Mitra v. State of M.P. [AIR 2003 SC
1069]; M/s. Pepsi Foods Ltd. & Anr. v.
Special Judicial Magistrate & Ors. [AIR
1988 SC 128]; State of U.P. v. O.P.
Sharma [(1996) 7 SCC 705]; Ganesh
Narayan Hegde v. s. Bangarappa &
Ors. [(1995) 4 SCC 41]; Zundu Phar
maceutical Works Ltd. v. Mohd. Shar
aful Haque & Ors. [AIR 2005 SC 9];
M/s. Medchl Chemicals & Pharma (P)
Ltd. v. M/s. Biological E. Ltd. & Ors.
[AIR 2000 SC 1869]; Shakson Belthis
sor v. State of Kerala & Anr. [(2009) 14
SCC 466]; V.V.S. Rama Sharma & Ors.
v. State of U.P. & Ors. [(2009) 7 SCC
234]; Chunduru Siva Ram Krishna &
Anr. v. Peddi Ravindra Babu & Anr.
[(2009) 11 SCC 203]; Sheo Nandan
Paswan v. State of Bihar & Ors. [AIR
1987 SC 877]; State of Bihar & Anr. v.
P.P. Sharma & Anr. [AIR 1991 SC
1260]; Lalmuni Devi (Smt.) v. State of
Bihar & Ors. [(2001) 2 SCC 17]; M.
Krishnan v. Vijay Singh & Anr. [(2001)
8 SCC 645]; Savita v. State of Ra
jasthan [(2005) 12 SCC 338]; and S.M.
Datta v. State of Gujarat & Anr.
[(2001) 7 SCC 659]}.
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27.16. These are the principles which individu
ally and preferably cumulatively (one or more)
be taken into consideration as precepts to exer
cise of extraordinary and wide plenitude and
jurisdiction under Section 482 of the Code by the
High Court. Where the factual foundation for an
offence has been laid down, the courts should be
reluctant and should not hasten to quash the
proceedings even on the premise that one or two
ingredients have not been stated or do not ap
pear to be satisfied if there is substantial compli
ance to the requirements of the offence.”
30. The Apex Court in the cases titled as Surya Baksh
Singh versus State of U.P., reported in 2013 AIR SCW 5976, and
Umesh Kumar versus State of Andhra Pradesh, reported in 2013
AIR SCW 6062, has discussed the scope of Section 482 CrPC. It is
apt to reproduce para 13 of the judgment in Surya Baksh Singh’s
case (supra) herein:
“13. It is at once obvious that whereas Section
482 of the CrPC is available only to the High
Courts, Section 151 can be resorted to at any
stage of civil judicial proceedings in any of the
hierarchical tiers. Secondly, the use of the word
‘otherwise’ in Section 482 has the avowed
effect of boundlessly broadening the boundaries
of inherent powers of the High Court in exercise
of its criminal jurisdiction. Thirdly, Section 482
can be employed to ensure obedience of any
order passed by the Court because of the phrase
“to give effect to any order under this Code”.
State of Karnataka v. L. Muniswamy, (1977) 2
SCC 699 enunciates that in exercise of its
inherent powers in criminal matters “the High
Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse of the
process of the Court or that the ends of justice
require that the proceeding ought to be
quashed…..The ends of justice are higher than
the ends of mere law though justice has got to
be administered according to laws made by
the Legislature. The compelling necessity for
making these observations is that without a
proper realisation of the object and purpose of
the provision which seeks to save the inherent
powers of the High Court to do justice between
the State and its subjects, it would be impossible
to appreciate the width and contours of
that salient jurisdiction”. A ThreeJudge Bench
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clarified in Krishnan v. Krishnaveni, (1997) 4
SCC 241 that although a second Revision
before the High Court after dismissal of the first
one by the Court of Sessions is barred by Section
397(3), the inherent powers of the High Court
under Section 482 are nevertheless available
albeit with restraint so as to avoid needless
multiplicity of the proceedings. This Court had
opined that “when the High Court notices that
there has been failure of justice or misuse of
judicial mechanism or procedure, sentence or
order is not correct, it is but the salutary duty of
the High Court to prevent the abuse of the
process or miscarriage of justice or to correct
irregularities ….. The inherent power of the
High Court is not one conferred by the Code
but one which the High Court already has in it
and it is preserved by the Court”. Raj Kapoor v.
State (Delhi Administration), AIR 1980 SC 258
considered the question whether the inherent
power of the High Court under Section 482
stand repelled when the revisional power
under Section 397 overlaps. The view was that
“Section 482 contradicts this contention
because nothing in the Code, not even Section
397 can affect the amplitude of the inherent
power preserved in so many terms by the
language of Section 482. Even so, a general
principle pervades this branch of law; when a
specific provision is made, easy resort to
inherent power is not right except under
compelling circumstances. Not that there is
absence of jurisdiction but that inherent power
should not invade areas set apart for specific
power under the same Code”. In State of Punjab
v. Kasturi Lal, (2004) 12 SCC 195 : 2004 Crl. L.J.
3866, after cautioning against reckless use of
Section 482 this Court has observed– “Inherent
jurisdiction under the section though wide has
to be exercised sparingly, carefully and with
caution and only when such exercise is justified
by the tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae to do
real and substantial justice for the
administration of which alone Courts exists.
Authority of the Courts exists for advancement
of justice and if any attempt is made to abuse
that authority so as to produce injustice, the
Court has power to prevent such abuse. It would
be an abuse of process of the Court to allow any
action which would result in injustice and
prevent promotion of justice. In exercise of the
powers Court would be justified to quash any
proceeding if it finds that initiation/
continuance of it amounts to abuse of the
process of Court or quashing of these
proceedings would otherwise serve the
ends of justice”. Advanced Law Lexicon by P.
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Ramanatha Aiyar defines Justice as – “The
exercise of authority or power in maintenance
of right; vindication of right by assignment of
reward or punishment; the administration of
law or the form and processes attending it; the
principle of just dealing”.”
31. The Apex Court has laid down the various tests as
discussed hereinabove.While applying the tests to the instant
case, the question to be determined is – whether the petitioners
have carved out a case for interference? The answer is in negative
for the following reasons:
32. Learned counsel for the petitioners argued that it is a
civil liability. The Apex Court in a catena of cases has held that if a
civil remedy is also available or if a case emanates out of civil
liability, that cannot be ground to throw out a criminal case
during investigation or before it has come up for trial.
33. The Apex Court in the case of Trisuns Chemical
Industry versus Rajesh Agarwal and others, reported in (1999) 8
Supreme Court Cases 686, laid down the same proposition. It is
apt to reproduce paras 7, 8 and 9 of the judgment herein:
“ 7. Time and again this Court has been pointing
out that quashment of FIR or a complaint in ex
ercise of inherent powers of the High Court
should be limited to very extreme exceptions
(vide State of Haryana v. Bhajan Lal, 1992 Suppl
(1) SCC 335 : (1992 AIR SCW 237 : AIR 1992 SC
604 : 1992 Cri LJ 527) and Rajesh Bajaj v. State
NCT of Delhi (1999) 3 SCC 259 : (1999 AIR SCW
881 : AIR 1999 SC 1216 : 1999 Cri LJ 1833)).
8. In the last referred case this Court also pointed
out that merely because an act has a civil profile
is not sufficient to denude it of its criminal outfit.
We quote the following observations (SCC p. 263,
para 10) :
“10. It may be that the facts narrated in the
present complaint would as well reveal a com
mercial transaction or money transaction. But
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that is hardly a reason for holding that the of
fence of cheating would elude from such a trans
action. In fact, many a cheatings were commit
ted in the course of commercial and also money
transactions.”
9. We are unable to appreciate the reasoning that
the provision incorporated in the agreement for
referring the disputes to arbitration is an effect
ive substitute for a criminal prosecution when
the disputed act is an offence. Arbitration is a
remedy for affording reliefs to the party affected
by breach of the agreement but the arbitrator
cannot conduct a trial of any act which amoun
ted to an offence albeit the same act may be con
nected with the discharge of any function under
the agreement. Hence, those are not good reasons
for the High Court to axe down the complaint at
the threshold itself. The investigating agency
should have had the freedom to go into the
whole gamut of the allegations and to reach a
conclusion of its own. Preemption of such in
vestigation would be justified only in very ex
treme cases as indicated in State of Haryana v.
Bhajan Lal (1992 AIR SCW 237 : AIR 1992 SC
604 : 1992 Cri LJ 527) (supra).”
34. It will also be profitable to reproduce relevant portion
of the judgment rendered by the Apex Court in the case of Amit
Kapoor versus Ramesh Chander and another, reported in (2012)
9 Supreme Court Cases 460, herein:
“26. This further raises a question as to the
wrongs which become actionable in accordance
with law. It may be purely a civil wrong or purely
a criminal offence or a civil wrong as also a
criminal offence constituting both on the same
set of facts. But if the records disclose commission
of a criminal offence and the ingredients of the
offence are satisfied, then such criminal
proceedings cannot be quashed merely because a
civil wrong has also been committed. The power
cannot be invoked to stifle or scuttle a legitimate
prosecution. The factual foundation and
ingredients of an offence being satisfied, the
Court will not either dismiss a complaint or
quash such proceedings in exercise of its inherent
or original jurisdiction. In the case of Indian Oil
Corporation v. NEPC India Ltd. & Ors. [(2006) 6
SCC 736], this Court took the similar view and
upheld the order of the High Court declining to
quash the criminal proceedings because a civil
contract between the parties was pending.”
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35. The Apex Court in the case of Vijayander Kumar and
others versus State of Rajasthan and another, reported in (2014)
3 Supreme Court Cases 389, held that only because a civil remedy
is available, cannot be a ground to quash criminal proceedings. It
is apt to reproduce paras 10 and 12 of the judgment herein:
“10. Contra the submission advanced on behalf of the
appellants, the learned counsel for Respondent No. 2
has submitted that there is no merit in the contention
advanced on behalf of the appellants that the FIR
discloses only a civil case or that there is no allegation
or averment making out a criminal offence. For that
purpose he relied upon the judgment of the High
Court rendered in the facts of this very case in
Vijayander Kumar v. State of Rajasthan, 1999 Cri L J
1849 (Raj), already noted earlier.
11. ……………………
12. The learned counsel for the respondents is correct
in contending that a given set of facts may make out a
civil wrong as also a criminal offence and only
because a civil remedy may also be available to the
informant/complainant that itself cannot be a
ground to quash a criminal proceeding. The real test
is whether the allegations in the complaint disclose a
criminal offence or not. This proposition is supported
by several judgments of this Court as noted in para 16
of the judgment in Ravindra Kumar Madhanlal
Goenka v. Rugmini Ram Raghav Spinner (P) Ltd.,
(2009) 11 SCC 529 : (2010) 3 SCC (Cri) 1011.”
36. It is projected that it is a case of vengeance, political
vendetta and mala fide. Learned counsel for the petitioners also
argued that all the documents annexed with the petition do
disclose that the alleged accused are not involved in the
commission of offences, but it is outcome of vengeance and the
documents annexed with the petition have not been considered
by the investigating agency, thus, no case for criminal trial is
made out. This argument advanced by the learned counsel for the
petitioners is devoid of any force for the reason that the FIR
was lodged and investigation has been conducted. In terms of the
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status report filed, investigation has been concluded and the
material collected do disclose that eighteen persons are, prima
facie, involved in the commission of offences, who have been
arrayed as accused.
37. The Apex Court in the case of State of Bihar and
another etc. etc. versus Shri P.P. Sharma and another etc. etc.,
reported in AIR 1991 Supreme Court 1260, held that the
allegations of mala fide based on the facts after the lodging of the
FIR are of no consequence and cannot be the basis for quashing
the proceedings. It is apt to reproduce para 23 of the judgment
herein:
“23. The informant, being in a peculiar position
having lodged the accusation is bound to be
looked down upon by the accusedpersons. The
allegations of mala fide, therefore, against the
informant based on the facts after the lodging of
the FIR are of no consequence and cannot be the
basis for quashing the proceedings. As regards
the investigating officer, he has wide powers
under the Criminal Procedure Code. He has to
perform his duties with the sole object of
Investigating the allegations and in the course of
the investigation he has to take into
consideration the relevant material whether
against or in favour of the accused. Simply
because the investigating officer, while acting
bona fide, rules out certain documents as
irrelevant, it is no ground to assume that he
acted mala fide. The policereport submitted by
the investigating officer has to pass through the
judicial scrutiny of a Magistrate, at the stage of
taking cognisance. Although the accused person
has no right to be heard at that stage but in case
the accused person has any grouse against the
investigating officer or with the method of
investigation he can bring to the notice of the
Magistrate his grievances which can be looked
into by the Magistrate. When the police report
under S.1 73, Cr. P. C. has to go through the
judicial scrutiny it is not open to the High Court
to find fault with the same on the ground that
certain documents were not taken into
consideration by the investigating officer. We do
not, therefore, agree with the High Court that the
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FIR and the investigation is vitiated because of
the mala fide on the part of the informant and
the investigating officer. We may, however,
notice the factualmatrix on the basis of which
the High Court has reached the findings of mala
fide against the informant and the investigating
officer………………..”
38. The Apex Court in a recent judgment in the case of
Umesh Kumar versus State of Andhra Pradesh, reported in 2013
AIR SCW 6062, held that the proceedings should not be quashed
only on the ground that same were initiated with mala fides to
wreak vengeance or to achieve ulterior goal.
39. Thus, the argument of mala fide is of no help, though
the file does not disclose at this stage how it is a case of mala fide.
40. The State has filed objections to CMP No. 320 of 2014
and has stated that the investigation is complete, all necessary
formalities have been completed, the competent Authority has
granted sanction and only final report in terms of Section 173 (2)
CrPC has to be presented before the Court of competent
jurisdiction. The investigating agency has come to the conclusion
that so far eighteen persons are involved in the commission of
offences and is a fit case for trial.
41. The Apex Court in the case of Dharmatma Singh
versus Harminder Singh & Ors., reported in 2011 AIR SCW 3147,
while dealing with Section 173 CrPC, held as under:
“9. A reading of provisions of subsection (2) of
Section 173, Cr.P.C. would show that as soon as
the investigation is completed, the officer in
charge of the police station is required to forward
the police report to the Magistrate empowered to
take cognizance of the offence stating inter alia
whether an offence appears to have been
committed and if so, by whom. Subsection (8)
of Section 173 further provides that where upon
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further investigation, the officer in charge of the
police station obtains further evidence, oral or
documentary, he shall also forward to the
Magistrate a further report regarding such
evidence and the provisions of subsection (2) of
Section 173, Cr.P.C., shall, as far as may be,
apply in relation to such report or reports as they
apply in relation to a report forwarded under
subsection (2). Thus, the report under sub
section (2) of Section 173 after the initial
investigation as well as the further report under
subsection (8) of Section 173 after further
investigation constitute “police report” and have
to be forwarded to the Magistrate empowered to
take cognizance of the offence. It will also be
clear from Section 190 (b) of the Cr.P.C. that it is
the Magistrate, who has the power to take
cognizance of any offence upon a “police report”
of such facts which constitute an offence. Thus,
when a police report is forwarded to the
Magistrate either under subsection (2) or under
subsection (8) of Section 173, Cr.P.C., it is for the
Magistrate to apply his mind to the police report
and take a view whether to take cognizance of an
offence or not to take cognizance of offence
against an accused person.
42. The Apex Court in the case of Ravindra Kumar
Madhanlal Goenka and another versus Rugmini Ram Raghav
Spinners Private Limited, reported in (2009) 11 Supreme Court
Cases 529, held that while entertaining petition under Section
482, materials furnished by defence cannot be looked into and
can be entertained only at the relevant point of time during the
trial. It is apt to reproduce para 18 of the judgment herein:
“18. While entertaining a petition under Section
482 CrPC, the materials furnished by the defence
cannot be looked into and the defence materials
can be entertained only at the time of trial. It is
well settled position of law that when there are
prima facie materials available, a petition for
quashing the criminal proceedings cannot be
entertained. The investigating agency should
have had the freedom to go into the whole gamut
of the allegations and to reach a conclusion of its
own. Preemption of such investigation would be
justified only in very extreme cases.”
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43. In Vijayander Kumar and others versus State of
Rajasthan and another, reported in (2014) 3 Supreme Court
Cases 389, the Apex Court held that at the infancy stage, the
material relied by the alleged accused cannot be gone through
and is to be considered during trial at the appropriate stage. It is
profitable to reproduce para 11 of the judgment herein:
“11. No doubt, the views of the High Court in
respect of averments and allegations in the FIR
were in the context of a prayer to quash the FIR
itself but in the facts of this case those findings
and observations are still relevant and they do
not support the contentions on behalf of the
appellants. At the present stage when the
informant and witnesses have supported the
allegations made in the FIR, it would not be
proper for this Court to evaluate the merit of the
allegations on the basis of documents annexed
with the memo of appeal. Such materials can be
produced by the appellants in their defence in
accordance with law for due consideration at
appropriate stage.”
44. In the case of State of Andhra Pradesh versus
Goloconda Linga Swamy and another, reported in AIR 2004
Supreme Court 3967, the Apex Court has held that whether the
material collected would be sufficient for framing the charge of an
offence is domain of the trial Court and whether such material is
sufficient to hold them guilty or otherwise, is to be considered by
the trial Court at the appropriate stage.
45. The case is to be tested at this stage on the facts
disclosed in the FIR and final report of the investigating agency.
46. The Apex Court has provided that this power is to be
exercised, as discussed hereinabove, carefully, cautiously and in
rarest of rare cases, while keeping in view the tests laid down right
from the year 1926 till today.
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47. It is apt to reproduce para 7 of the judgment rendered
by the Apex Court in the case of Central Bureau of Investigation
versus Ravi Shankar Srivastava, IAS & Anr., reported in 2006 AIR
SCW 3990:
“7. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
not the rule. The Section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognizes and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence
of any express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle
“quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest”
(when the law gives a person anything it gives
him that without which it cannot exist). While
exercising powers under the section, the court
does not function as a court of appeal or revision.
Inherent jurisdiction under the section though
wide has to be exercised sparingly, carefully and
with caution and only when such exercise is
justified by the tests specifically laid down in the
section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the
administration of which alone courts exist.
Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of
process of the court to allow any action which
would result in injustice and prevent promotion
of justice. In exercise of the powers court would
be justified to quash any proceeding if it finds
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that initiation/continuance of it amounts to
abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the
complaint, the court may examine the question
of fact. When a complaint is sought to be
quashed, it is permissible to look into the
materials to assess what the complainant has
alleged and whether any offence is made out
even if the allegations are accepted in toto.”
48. The Apex Court in the cases titled as State of Orissa
and another versus Saroj Kumar Sahoo, reported in (2005) 13
Supreme Court Cases 540, and Som Mittal versus Govt. of
Karnataka, reported in 2008 AIR SCW 1003, held that the
inherent power of the High Court should not be exercised
according to the whims and caprice and it has to be exercised
sparingly, with circumspection and in the rarest of rare cases. It is
apt to reproduce paras 10 and 19 of the judgment in Som Mittal’s
case (supra) herein:
“10. In a catena of decisions this Court has
deprecated the interference by the High Court in
exercise of its inherent powers under Section 482
of the Code in a routine manner. It has been
consistently held that the power under Section
482 must be exercised sparingly, with
circumspection and in rarest of rare cases.
Exercise of inherent power under Section 482 of
the Code of Criminal Procedure is not the rule
but it is an exception. The exception is applied
only when it is brought to the notice of the Court
that grave miscarriage of justice would be
committed if the trial is allowed to proceed
where the accused would be harassed
unnecessarily if the trial is allowed to linger
when prima facie it appears to Court that the
trial would likely to be ended in acquittal. In
other words, the inherent power of the Court
under Section 482 of the Code of Criminal
Procedure can be invoked by the High Court
either to prevent abuse of process of any Court or
otherwise to secure the ends of justice.
11. …………………..
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12. …………………..
13. …………………..
14. ……………………
15. ……………………
16. ……………………
17. ……………………
18. ……………………
19. We may observe here that despite this Court’s
consistently held in catena of decisions that
inherent power of the High Court should not be
exercised according to whims and caprice and it
has to be exercised sparingly, with
circumspection and in the rarest of rare cases, we
often come across the High Court exercising the
inherent power under Section 482 of the Code of
Criminal Procedure in a routine manner at its
whims and caprice setting at naught the
cognizance taken and the FIR lodged at the
threshold committing grave miscarriage of
justice. While it is true that so long as the
inherent power of Section 482 is in the Statute
Book, exercise of such power is not impermissible
but it must be noted that such power has to be
exercised sparingly with circumspection and in
the rarest of rare cases, the sole aim of which is to
secure the ends of justice. The power under
Section 482 is not intended to scuttle justice at
the threshold.”
49. The Apex Court in the cases titled as Som Mittal
versus Government of Karnataka, reported in 2008 AIR SCW
1640; K.L.E. Society & Ors. versus Siddalingesh, reported in 2008
AIR SCW 1993; Reshma Bano versus State of Uttar Pradesh &
Ors., reported in 2008 AIR SCW 1998 and Pankaj Kumar versus
State of Maharashtra & Ors., reported in 2008 AIR SCW 5165,
held that the power under Section 482 CrPC to quash proceedings
should not be used mechanically or routinely, but with care and
caution, only when a clear cut case for quashing is made out and
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failure to interfere would lead to a miscarriage of justice. It is apt
to reproduce para 10 of the judgment in Pankaj Kumar’s case
(supra) herein:
“10. The scope and ambit of powers of the High
Court under Section 482, CrPC or Article 227 of
the Constitution has been enunciated and reiter
ated by this Court in a series of decisions and sev
eral circumstances under which the High Court
can exercise jurisdiction in quashing proceedings
have been enumerated. Therefore, we consider it
unnecessary to burden the judgment by making
reference to all the decisions on the point. It
would suffice to state that though the powers
possessed by the High Courts under the said pro
visions are very wide but these should be exer
cised in appropriate cases, ex debito justitiae to
do real and substantial justice for the adminis
tration of which alone the courts exist. The in
herent powers do not confer4 (2007) 11 SCC 4205
(2001) 8 SCC 607 an arbitrary jurisdiction on the
High Court to act according to whim or caprice.
The powers have to be exercised sparingly, with
circumspection and in the rarest of rare cases,
where the court is convinced, on the basis of ma
terial on record, that allowing the proceedings to
continue would be an abuse of the process of the
court or that the ends of justice require that the
proceedings ought to be quashed. [See: Janata
Dal Vs. H.S. Chowdhary & Ors., Kurukshetra
University & Anr. Vs. State of Haryana & Anr.
and State of Haryana & Ors. Vs. Bhajan Lal &
Ors.]”
50. The Apex Court in the cases of State of Maharashtra
& Ors. versus Arun Gulab Gawali & Ors., reported in 2010 AIR
SCW 6462; Santosh Kumari versus State of J. & K. & Ors.,
reported in 2011 AIR SCW 5313; Union of India and others
versus Ramesh Gandhi, reported in (2012) 1 Supreme Court
Cases 476; State of Madhya Pradesh versus Surendra Kori,
reported in (2012) 10 Supreme Court Cases 155, and Gian Singh
versus State of Punjab and Anr., reported in 2012 AIR SCW 5333,
held that Section 482 CrPC saves the inherent power of the High
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Court which it has by virtue of it being a superior Court to prevent
abuse of the process of any Court or otherwise to secure the ends
of justice. It is profitable to reproduce para 14 of the judgment in
Surendra Kori’s case (supra) herein:
“14. The High Court in exercise of its powers
under Section 482 CrPC does not function as a
Court of Appeal or Revision. This Court has, in
several judgments, held that the inherent
jurisdiction under Section 482 CrPC, though
wide, has to be used sparingly, carefully and with
caution. The High Court, under Section 482
CrPC, should normally refrain from giving a
prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of wide magnitude and
cannot be seen in their true perspective without
sufficient material.”
51. The Apex Court in a catena of judgments has asked
the courts to avoid appreciation of evidence, even in summary
manner, of pleadings and the averments contained in the FIR.
52. The Apex Court in the cases titled as Union of India
and others versus B.R. Bajaj and others, reported in AIR 1994
Supreme Court 1256; Sanapareddy Maheedhar Seshagiri & Anr.
versus State of Andhra Pradesh & Anr., reported in 2008 AIR
SCW 11 and its latest judgment rendered in Bhaskar Lal Sharma
and another versus Monica and others, reported in (2014) 3
Supreme Court Cases 383, held that the appreciation of
averments made in a complaint or FIR is not permissible even in a
summary manner at the stage of quashment of criminal
proceeding. It is apt to reproduce para 11 of the judgment in
Bhaskar Lal Sharma’s case (supra) herein:
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“11. The facts, as alleged, therefore will have to
be proved which can only be done in the course
of a regular trial. It is wholly unnecessary for us
to embark upon a discourse as regards the scope
and ambit of the Court’s power to quash a
criminal proceeding. The appreciation, even in a
summary manner, of the averments made in a
complaint petition or FIR would not be
permissible at the stage of quashing and the facts
stated will have to be accepted as they appear on
the very face of it. This is the core test that has to
be applied before summoning the accused. Once
the aforesaid stage is overcome, the facts alleged
have to be proved by the
complainant/prosecution on the basis of legal
evidence in order to establish the penal liability
of the person charged with the offence.”
53. I have had the occasion to deal with this issue as
Judge of the High Court of Jammu and Kashmir at Srinagar in a
series of cases including the case titled Mian Abdul Qayoom
versus State & Ors., reported in 2011 (1) JKJ 470 (HC), which was
a serious and sensitive matter, wherein I have discussed how this
power can be exercised. In that case, the challan was almost
ready to be filed and the Bar President, who was named as
accused in the said case, filed a petition under Section 561A of
the old Code (corresponding to Section 482 CrPC), after
discussing all the tests and several facts and circumstances of that
case, it was held that no case for interference was made out.
54. In another case titled as Dr. Kulbhushan Nahar &
Ors. versus C.B.I. & Ors. decided by me as Judge of the High
Court of Jammu and Kashmir at Jammu, on 4
th
September, 2013,
the argument was advanced that the FIR is outcome of the ulterior
motives and mala fides in order to ensure that the accused is
lodged in jail, his reputation is at stake and this was completely
turned down on the ground that the FIR on the face value was
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disclosing the commission of offences and material was collected
during investigation and was a matter to be gone through by the
competent court/trial Court.
55. Learned counsel for the petitioners has also argued
that petitioner No. 2Anurag Thakur and other persons, allegedly
involved in the commission of offences, are not public servants,
so the provisions of PC Act cannot be invoked.
56. This argument is misconceived for the simple reason
that eighteen persons have been arrayed as accused and some of
them are public servants. It is alleged that all of them have
hatched the conspiracy and caused wrongful gain to the
petitioners and wrongful loss to the State. It is also alleged that
they have misused their official positions in order to shower
benefits and to show favour to the other accused.
57. The petition has been filed on behalf of the Himachal
Pradesh Cricket Association through Shri Surinder Singh Thakur
and by Shri Anurag Thakur. Shri Anurag Thakur has not sworn
any affidavit qua the averments made in the petition. It is, thus, a
moot question whether this petition is maintainable as such? I
deem it proper to leave this question open.
58. The remedy under Section 482 CrPC, i.e. invoking the
inherent jurisdiction, should not be used as a device to frustrate
the investigation or trial.
59. It is apt to reproduce relevant portion of para 12 of the
judgment of the Apex Court in the case of State of Maharashtra &
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Ors. versus Arun Gulab Gawali & Ors., reported in 2010 AIR SCW
6462, herein:
“12. The power of quashing criminal proceedings
has to be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases and the Court cannot be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of allegations made in the
F.I.R./Complaint, unless the allegations are so
patently absurd and inherently improbable so that
no prudent person can ever reach such a
conclusion. The extraordinary and inherent powers
of the Court do not confer an arbitrary jurisdiction
on the Court to act according to its whims or
caprice. However, the Court, under its inherent
powers, can neither intervene at an uncalled for
stage nor it can ‘softpedal the course of justice’ at a
crucial stage of investigation/ proceedings. The
provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as `Cr.P.C.’) are
a device to advance justice and not to frustrate it.
The power of judicial review is discretionary,
however, it must be exercised to prevent the
miscarriage of justice and for correcting some grave
errors and to ensure that esteem of administration
of justice remains clean and pure. However, there
are no limits of power of the Court, but the more
the power, the more due care and caution is to be
exercised in invoking these powers.”
60. Lodging of FIR, conducting the investigation and
preparation of charge sheet in terms of Section 173 CrPC has to
undergo scrutiny of judiciary at various stages and is yet a still
born child. The remedy provided by Section 482 CrPC cannot be
used to scuttle away the proceedings enroute before the
cognizance is drawn and process is issued by the committal
Court/ trial Court and to make an effort to kill a still born child.
61. It is apt to reproduce relevant portion of para 68 of the
judgment of the Apex Court in the case of State of Bihar and
another etc. etc. versus Shri P.P. Sharma and another etc. etc.,
reported in AIR 1991 Supreme Court 1260, herein:
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“Quashing the chargesheet even before
cognizance is taken by a criminal Court amounts
to killing a still born child. Till the criminal
Court takes cognizance of the offence there is no
criminal proceedings pending. I am not allowing
the appeals on the ground alternative remedies
provided by the Code as a bar. It may be relevant
in an appropriate case. My view is that
entertaining the writ petitions against charge
sheet and considering the matter on merit on
the guise of prima facie evidence to stand on
accused for trial amounts to pretrial of a
criminal trial…. It is not to suggest that
under no circumstances a writ petition should
be entertained….. The chargesheet and the
evidence placed in support thereof form the base
to take or refuse to take cognizance by the
competent Court. It is not the case that no offence
has been made out in the chargesheets and
the First Information Report.”
(Emphasis added)
62. The same view has been taken by the Apex Court in a
latest judgment in a case titled Umesh Kumar versus State of
Andhra Pradesh, reported in 2013 AIR SCW 6062.
63. Learned Advocate General has vehemently argued
that it has come in the FIR and the final report in terms of Section
173 (2) CrPC that the documents have been managed fraudulently
and by misuse of the powers, the said fact can be proved when
opportunity is given to the prosecution to prove the same and
cannot be gone through at this stage, appears to be plausible and
has a force in view of the judgment of the Apex Court in the case
of State of Madhya Pradesh versus Surendra Kori, reported in
(2012) 10 Supreme Court Cases 155. It is profitable to reproduce
para 24 of the judgment herein:
“24. We are of the considered opinion that in
view of the magnitude of the crime, the number
of documents alleged to have been executed
fraudulently, the reports referred to in the
chargesheets and the involvement of the
respondent, etc. could be decided only if an
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opportunity is given to the prosecution. The
High Court, in such circumstances, was not
justified in quashing all the first information
reports and the chargesheets in exercise of its
powers under Section 482 CrPC.”
64. Having said so, no case for interference is made out at
this stage and the petition merits to be dismissed alongwith all
CMPs. Dismissed as such.
(Mansoor Ahmad Mir)
Acting Chief Justice
April 25, 2014
( rajni )
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