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TMI Blog2014 (1) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... cally use the expression ‘prevent abuse of process of any court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. What weighed with the High Court was that firstly it was an abuse of the process of court and, secondly, it was a case of civil nature and that the facts, as stated, would not constitute an offence under Section 306 read with Section 107 IPC. Interestingly and as is evident from the findings recorded by the High Court reproduced supra that ‘this aspect of the matter will get unravelled only after a full-fledged trial’, once the High Court itself was of the opinion that clear facts and correctness of the allegations made can be examined only upon full trial, where was the need for the Court to quash the charge under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence. Husband of the deceased was a paralysed person. They were in financial crises. They had sold their property. They had great faith in the accused and were heavily relying on him as their property transactions were transacted through the accused itself. Grabbing of the property, as alleged in the suicide note and the statement made by the son of the deceased as well as getting blank papers signed and not giving monies due to them are the circumstances stated to have led to the suicide of the deceased. The Court is not expected to form even a firm opinion at this stage but a tentative view that would evoke the presumption referred to under Section 228 of the Code. Finding returned by the High Court suffers from an error of law. It has delved into the field of appreciation and evaluation of the evidence which is beyond the jurisdiction, either revisional or inherent, of the High Court under Sections 397 and 482 of the Code - Charge against the accused un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- for the plot situated in Bawana as against the market value of Rs.28,00,000/-, with an assurance that the rest of the amount will be paid after execution of the sale deed. 4. Around the time of Dussehra in 2007, the accused approached the deceased claiming that he be given accommodation on a temporary basis for a period of ten to twelve days on the ground floor of her house situated at C- 224, Tagore Garden, Delhi on the pretext that his own house was under renovation. The deceased believing him and keeping the relationship in mind, agreed and allowed him to occupy two rooms on the ground floor. It is alleged that while the deceased was away at Haridwar, just before the festival of Diwali, the accused encroached upon one more room in the said house. When the deceased asked the accused to vacate the said premises, he refused and, on the contrary, stated that he had paid a sum of Rs.24,00,000/- and that it was his house. Not only this, the accused as well as his son threatened the deceased and her family to vacate the house or else they would ruin them. It is also alleged that when the deceased asked the accused as to when she will get rid of this problem, he is said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut I do not know as to what he had done with that amount. He used to say that he had given us the entire amount. Whatever amount he gave to us he used to take in writing on a paper. After giving his amount, when I asked for the file, he demanded Rs.05 lacs otherwise, he would reveal it to my daughter that the file was lying with him. He also threatened me to sign the paper without raising any objection otherwise, he would get our children grandson and granddaughter kidnapped. On this, I used to scare and this man used to succeed in getting the stamp papers signed by me. When he got our plot of Rohini sold, he started obtaining my signatures. But at the time when the plot of Rohini was sold, he told me that the plot situated in Bawana has been sold and he asked us to accompany him to sign the papers. Thereafter, he said that the person with whom he has kept the file was saying to him that he could take away the file from that person but only in lieu of keeping papers of some other house with that person. When this man (suggested) me to keep other file (of property) in lieu of taking the said file from that person and this man (also assured me) that he would return those papers of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rs.15 lacs I have returned a sum of Rs. Of Seven and a half lacs to him. After that, this man s son came to me and said that his father was saying to give papers of property No.C-225 to you and in lieu thereof he asked me to show him the file of lease. On this, when I started to show him the said file to him then, this man s son Gaurav said that he was just giving me the said paper and saying this he took away the lease file from me and since then, he had not returned me the said paper. Kindly save my house. Please save my children from this person. I have not visited any court to sign. One day these persons crossed all the limits when his wife said that she was agreed to return all the papers in lieu of giving a receipt of the same in writing. After that, they gave me the amount of sale proceeds of Rohini and Bawana s properties. She brought fake papers which were related to some other person s property, to me. I saw that those papers were fake papers and were in English language and when I showed those papers to someone, it was found that those papers were not related to my plot. When I went to this man s house to show him that those papers were not related to my plot, his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Column No.2. Upon committal, the learned Additional Sessions Judge framed charges against the accused under Sections 306 and 448 of the Indian Penal Code, 1860 (IPC). 6. The accused filed a criminal revision being Criminal Revision No.227 of 2009 in the High Court of Delhi at New Delhi challenging the order of the trial Court dated 2nd April, 2009, framing the charge. The High Court vide its judgment dated 13th August, 2009 quashed the charge framed under Section 306 IPC, while permitting the Trial Court to continue the trial in relation to the offence under Section 448 IPC. It will be useful to refer to certain findings recorded by the High Court in its judgment dated 13thAugust, 2009 3. In the background of the aforesaid case set up by the prosecution the learned counsel for the petitioner submitted that the ingredients of an offence under Section 306 of the IPC were not present in the instant case. As a matter of fact the learned counsel for the petitioner went further to say that this is not a case of suicide, rather is, a case of homicide. For this purpose he took me through the post mortem report and also the literature (Pathology of Neck Injury by Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al offence, the accused cannot be charged with the offence of abetment and, therefore, in the present case, abetment to commit suicide. Nor I am persuaded by the submission that because the name of the petioner-accused appears in the suicide note it would be sufficient to charge him with an offence under Section 306 of the IPC. In this context see observation in Sanju @ Sanjay Singh Senger (supra) and Mahender Singh (supra). In both the cases not ony was the accused named in the suicide note but they were also cited as the reason for committing suicide by the deceased. The learned APP may perhaps be correct in his submission that the agreement to sell dated 30.06.2007 was executed by the petitioner- accused, only to grab the property of the deceased after a receipt had been executed by the deceased acknowledging that she had taken a loan from the petitioner-accused in the first instance in the sum of Rs.15 lacs and thereafter, another sum of Rs. 1 lac, but then, this aspect of the matter will get unravelled only after a full- fledged trial. I do not wish to comment any further on this aspect of the matter as it could impact both, the case of the prosecution as well as that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. Right from the case of State of West Bengal Ors. v. Swapan Kumar Guha Ors. [(1982) 1 SCC 561], which was reiterated with approval in the case of State of Haryana Ors. v. Bhajan Lal Ors. [1992 Supp. (1) SCC 335], the courts have stated the principle that if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. It is further stated that the legal position appears to be that if an offence is disclosed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the record of the case and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing , as enjoined by Section 227. If, on the other hand, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused , as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused. 13. It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that Section 482 does not confer any power but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As lacunae are sometimes found in procedural law, the Section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are, however, required to be reserved as far as possible for extraordinary cases. 15. In Janata Dal v. H.S. Chowdhary Ors. [(1992) 4 SCC 305], the Court, while referring to the inherent powers to make orders as may be necessary for the ends of justice, clarified that such power has to be exercise in appropriate cases ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the powers requires a great caution in its exercise. The High Court, as the highest court exercising criminal jurisdiction in a State, has inherent powers to make any order for the purposes of securing the ends of justice. Being an extra ordinary power, it will, however, not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the Court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the Court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions. 18. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of framing of charge or quashing of charge. 4) Where the exercise of such power is absolutely 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. 5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute theoffender. 7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scindia Anr. v. Sambhajirao Chandrojirao Angre Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary 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 Pharmaceutical Works Ltd. v. Mohd. Sharaful 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 Belthissor 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 Rajasthan [(2005) 12 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in the case of State of Maharashtra v. Som Nath Thapa Ors. [(1996) 4 SCC 659] referred to the meaning of the word presume while relying upon the Black s Law Dictionary. It was defined to mean to believe or accept upon probable evidence ; to take as proved until evidence to the contrary is forthcoming . In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence. This was not a case where the allegations were so predominately of a civil nature tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court proceeds further to notice that even if it is assumed at this stage that the suicide note and statement were correct, the action of the petitioner-accused in forcibly occupying the portion of the house of the deceased and the deceased taking the extreme step would not bring his act within the definition of abetment, as there is no material or evidence placed by the prosecution on record. This finding could hardly be recorded without travelling into the merits of the case and appreciating the evidence. The Court could pronounce whether the offence falls within the ambit and scope of Section 306 IPC or not. These documents clearly show that the accused persons had brought in existence the circumstances which, as claimed by the prosecution, led to the extreme step of suicide being taken by the deceased. It cannot be equated to inflictment of cruelty as discussed by the High Court in its judgment. Once Sections 107 and 306 IPC are read together, then the Court has to merely examine as to whether apparently the person could be termed as causing abetment of a thing. An abetter under Section 108 is a person who abets an offence. It includes both the person who abets eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and complete facts relating to the transaction were not disclosed to the deceased or the family. This would, at least at this stage, not be a case for examining the correctness or otherwise of these statements as these allegations cannot be said to be ex facie perverse, untenable or malicious. It would have been more appropriate exercise of jurisdiction by the High Court, if it would have left the matter to be determined by the Court upon complete trial. May be the accused would be entitled to get some benefits, but this is not the stage. These are matters, though of some civil nature, but are so intricately connected with criminal nature and have elements of criminality that they cannot fall in the kind of cases which have been stated by us above. There, the case has to be entirely of a civil nature involving no element of criminality. 26. The learned counsel appearing for the appellant has relied upon the judgment of this Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi) [(2009) 16 SCC 605] to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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