9911796707
TMI Blog2017 (4) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of Haryana vs. Bhajan Lal, which is to the following effect: “(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings. Appeal is allowed, the judgment of the High Court as well as the order of Additional Chief Judicial Magistrate and the order of the Sessions Judge including the entire criminal proceedings are quashed. - Criminal Appeal No. 577 of 2017 ( Arising Out of SLP( Crl. ) No. 287 of 2017) - - - Dated:- 31-3-2017 - A. K. Sikri And Ashok Bhushan, JJ. JUDGMENT Ashok Bhushan, J. 1. This appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced that the amount was borrowed with promise to return the amount. The agreements were written on Non-Judicial Stamp Papers which were not registered but contained signatures of the parties mentioned therein. 4. Accused No.3 filed a complaint under Section 138 of Negotiable Instruments Act being Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of ₹ 9 lakh was paid to the opposite parties who had issued a cheque of ₹ 9 lakh with the assurance that the amount will be repaid by 22.08.2016. It was stated by accused No.3 in the complaint that after lapse of time when the amount was not paid, the cheque was deposited which was returned back by the Bank with remark No Sufficient Balance . When the opposite parties were contacted in this regard, the opposite parties told not come to them. After giving a notice on 05.09.2016, complaint was filed on 21.09.2015. Accused No.1 had also filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against the complainant, her husband and son. Cheque given by son of the complainant of ₹ 6 lakh to accused No.2 was also dishonoured. Complaint filed by accused No.1 under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also asked some questions to get her wife medically examined following answers were given by the husband: Question Now get the medical examination of hour wife done so that D.N.A. etc. proceeding could be done? Ans.This occurrence is of 22.10.2015 in the evening at 19.30 hrs. and since then till now I have also have sexual intercourse with my wife several times. Thus, now there is no benefit out of medical examination and instead I myself will be positive. 6. Before the IO, complainant, her husband, fatherinlaw and motherinlaw all stated that at the time of occurrence there was no electricity. 7. The accused also recorded statement of various persons in support of the claim of the accused that at the time alleged by the complainant they were not present and till 9 p.m. they were with their friends in Dushehara Mela. IO recorded the statement of certain persons who stated that accused were with them till 9 p.m. on 22.10.2015. 8. Although, the complainant and her husband refused medical examination when they are so asked by IO on 07.11.2015, but she got her medical examination done on 20.11.2015. Pathology Report (filed at page 50 of paper book) stated as : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent. Upon enquiry, she has stated that on 22.10.15 there was Dushehara festival and we after seeing Dushehara Mela had returned back and came at our house at about 5.00 p.m. I had opened my shop. I have a grocery shop. Most of transaction takes place in the evening. Rekha is my elder real Jethani. My Jeth Akhilesh has monetary transaction with Vineet and others. He used to borrow money Rs. Two lakh, four lakh from Vineet to invest the same in his business and the returns the same. Now what has happened I do not know and interse dispute has cropped up among them and my Jethani has taken such a wrong step which does not happens in our house. Our family and the family of Vineet are the respected family of Mohalla and we have business and trade of lakh of rupees. We have spade an scolded them. Our children are also growing to be young. When you people visit it has effect on them. Now they are realising the mistake. No occurrence of rape etc. has happened in our house and in this regard the complete Mohalla will tender evidence. I have even appeared in the Court and submitted an affidavit and will tell the true fact in the Court. QuestionOn 22.10.15 in the evening at 7.30 p.m. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or quashing the orders by making the following observations: From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the Bar relates to the dispute question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. at this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)426, State of Bihar Vs. R.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceuticals Works Ltd. Vs. Mohd. Saraful Haq and another (par 10) 205 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. 16. Aggrieved by the above judgment of the High Court this appeal has been filed. 17. Learned counsel for the appellants contended that criminal proceedings initiated by the complainant in the facts of the present case was malafide and falsely initiated to save complainant, her husband and son from making repayment of the amount taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested in the High Court. Section 482 Cr.P.C. 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. 21. This Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that 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. In paragraph 7 of the judgment following has been stated: 7....In the exercise of this wholesome power, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be exercised either to prevent 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 complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Further in paragraph 8 following was stated: 8.....Judicial process should not be an instrument of oppression, or, nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken. 9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband s mother s sister, husband s brotherinlaw and Sunita s father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6121994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1. 10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases. 11. 19. The section does not confer any new power 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e highest court of a State 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 magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hardandfast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary, Raghubir Saran (Dr.) v. State of Bihar and Minu Kumari v. State of Bihar, SCC p. 366, paras 1920.] 12. The present case appears to be one where Category 7 of the illustrations given in State of Haryana v. Bhajan Lal is clearly applicable. 26. From the material on records, following facts are disclosed from the sequence of events which preceded the registration of FIR on 06.11.2015. The complainant, her husband and son had taken different amounts totalling ₹ 22 lakh 50 thousand in the month of May, 2015 for business/shop purposes from the accused. Three agreements were written on NonJudicial S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 07.01.2016. 31. It is true that in the statement under Section 164 Cr.P.C, the complainant repeated her allegation. Complainant has also recorded her age in the statement as 47 years. 32. The Magistrate in allowing the Protest Petition only considered the submission made by the State while summoning the accused in paragraph 6 which is to the following effect: 6. In compliance with the order passed by the Hon'ble High Court and from the perusal of evidence and entire case diary this Court comes to the conclusion that the complainant is required to be registered as police complainant and there are sufficient grounds to summon the accused Vinit Kumar, Sonu and Nitendra for their trial under Section 376D, 323 and 352 of Indian Penal Code. 33. Learned Sessions Judge has also affirmed order taking note of statement under Section 164 Cr.P.C. 34. There was sufficient material on record to indicate that there were financial transactions between the accused and complainant, her husband and son. On dishonour of cheques issued by the complaint's husband and son proceedings under Section 138 of Negotiable Instruments Act were already initiated by the accused. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged against the appellantaccused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below: I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC. (emphasis supplied) 36. Writ petition was filed by the accused for quashing the FIR which was dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The chargesheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar s case (supra) stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354and 376 of the Indian Penal Code against the appellant accused, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
