Section 482 Cr.P.C.; Raysingbhai Kanjibhai Gamit Vs. State [Gujarat High Court, 05-08-2016]

Contents

Criminal P.C. 1973 – S. 482 – Penal Code, 1860 – Ss. 452, 447, 504, 506(2) & 114 – exercise of power under – jurisdiction of High Court – scope of – discussed.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

Date :5/08/2016

SPECIAL CRIMINAL APPLICATION NO. 1530 of 2011

RAYSINGBHAI KANJIBHAI GAMIT & 5….Applicant(s) Versus STATE OF GUJARAT & 2….Respondent(s)

Appearance: MR RAJESH K SHAH, ADVOCATE for the Applicant(s) No. 1 – 6 MR BALRAM D JAIN, ADVOCATE for the Respondent(s) No. 3

JUDGMENT

1. The petitioners – original accused have approached this Court by way of present petition for seeking quashing and setting aside the complaint being FIR No.I-C.R.No.131 of 2007 lodged before the Vyara Police Station for the offence punishable under

# Sections 452, 447, 504, 506(2)and 114 of the Indian Penal Code

and also the proceedings of Criminal Case No.2494 of 2007 pending before the JMFC,Vyara.

2. The case of the petitioners is that petitioners belonged to tribal community of District Tapi and are marginal farmers and labourers. The petitioner No.1 is running a tailoring shop in the name of King Master Tailor at J.P.Shopping Center. Said Shop No.15 is constructed and administered by Vyara Nagarpalika. The respondent No.3, who is the original complainant, is also having two shops at the very same J.P.Shopping Center and carrying on business in the name of Welcome Garment and the original complaint is dealing in the business of readymade garment. Somewhere around in the year 1994-95, Vyara Nagarpalika had allotted Shop No.15 to the petitioner No.1 and since then, petitioner No.1 is in possession of the said shop. The said shop is also recorded and registered with Vyara Nagarpalika under the Shops and Establishments Act,2006.

3. It is also the case of the petitioners that on 16.9.2004, respondent No.3 entered into an agreement to sell with the petitioner No.1 and in respect of that agreement, the petitioner No.1 had also filed a Regular Civil Suit No.107 of 2007 on 24.10.2007. Despite the aforesaid circumstance, respondent No.3 had filed the criminal complaint with Vyara Police Station being I-C.R.No.131 of 2007 on 25.10.2007 immediately after the date of filing of the suit. It is the case of the petitioners that this criminal complaint came to be filed with a view to frustrate the civil proceedings which came to be generated by the petitioners in the form of Regular Civil Suit as referred to above and therefore, by contending that petitioners have submitted that this amounts to abuse of process of law. Therefore, the complaint in question deserves to be quashed. It was also pointed out in the petition by the petitioners that in the Regular Civil Suit referred to above, an injunction application below Exh.5 came to be allowed vide order dated 27.5.2008 whereby, the civil court directed respondent No.3 not to enter the shop of petitioner No.1, namely, Shop No.15 situated at J.P.Shopping Center, Vyara. It is the case of the petitioners that In-charge Police Inspector, Vyara Police Station, Vyara, at the instance of original complainant i.e. present respondent No.3, has registered the complaint against the petitioners and carried out the investigation and filed the charge-sheet in the court of learned JMFC,Vyara on 28.11.2007 and then, a criminal case has been registered before the trial court bearing Criminal Case No.2494 of 2007. By submitting this, a case is put up by the petitioners before this Court in the petition that filing of the complaint by respondent No.3 is nothing but a step in the direction of abusing the process of law and therefore, requested to invoke the jurisdiction of this Court under Section 482 of the Cr. P.C.

4. This Court while entertaining the petition at the initial stage issued the notice on 19.6.2011 and subsequently, after hearing the learned counsel representing the parties, passed an order admitting the petition and while admitting, the Court has granted ad-interim relief in terms of Para.11 (c) till further hearing. The order dated 19.6.2012 reads, thus;

“1. Present petition has been filed by the petitioner under Articles 14, 19, 21 and 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR being I- CR.No.131/2007 registered with Vyara Police Station, Dist- Tapi, on the grounds stated in the petition.

2. Heard learned advocate Mr.Rajesh Shah for the petitioner, learned APP, Mr.H.L. Jani for the respondent No.1-State of Gujarat and learned Advocate Mr.Balram Jain for respondent No.3-original complainant.

3. Having perused the papers and considering the contentions as well as order passed by the learned Principal Civil Judge, Vyara in Regular Civil Suit No.107 of 2007 on 24.10.2007, referred to the various documents, some of which are produced on record, the matter requires consideration. It may be noted that the certificate of Vyara Nagarpalika placed on record, which has been referred and there is also reference to the documents with regard to the electric connection and the Chief Officer of Vyara Nagarpalika having stated that the shop in question may be transferred in the name of the applicant. Therefore, having regard to the aforesaid aspect and also the documents, the matter requires consideration. It is also required to be noted that appeal has been preferred against the order below Exh.5 in the Civil Suit No.18/2005 and even Appellate Court has also ordered to maintain status-quo. Therefore, following order is passed:

RULE returnable on 4th week of September, 2012.

Ad-interim relief in terms of Para 11(C) till final hearing of this petition. Direct Service is permitted.”

5. Before dealing with the submissions of the respective parties, a brief circumstance encircling the complaint in question is worth to be taken note of. In brief, the case of the complainant is since about more than 23 years, the respondent No.3 is dealing in the business of clothes and petitioner No.1 – Raysingbhai Kanjibhai Gamit has been doing a tailoring work and for stitching the read-made garments on frequent occasions, petitioner No.1 was taking the clothes from the complainant and in that context, petitioner No.1 came close with the complainant. It is the case of the complainant that somewhere in 2004 the petitioner No.1 placed offer that he wants to sell Shop No.15 situated in J.P. Shopping Center and since the respondent No.3 – complainant wanted to purchase the same, an amount came to be determined and in the presence of wife of the petitioner No.1 – Raysingbhai, in a gradual process, an amount of Rs.2 lacs came to be paid by the complainant. So much so that upon receipt of this amount in gradual process even an agreement with possession also came to be executed on 13.9.2004 and the said stamp paper was notarized. As a result of which, a further amount of Rs.50,000/- which was left out, was also paid and in addition thereto, charges about light bill and other incidental charges which were outstanding also came to be paid by the complainant and in all, in addition to earlier amount even Rs.60,000/- have been paid and pursuant to agreement to sell, the possession has already been entrusted by the petitioner No.1 and the possession is very much with the complainant. It is further the case of the complainant that after receipt of the complete consideration of sale by virtue of agreement to sell, the petitioner No.1 came back with a request to hand over back the possession of the shop, failing which a threat was administered that if possession will not be entrusted back, the complainant will be proceeded and fixed in atrocity case. In addition thereto, to resolve the dispute amongst the petitioner No.1 and respondent No.3 – complainant, even deliberation took place before the Nyay Samiti wherein also, pre-settlement took place but, not finalized and resultantly, to the surprise of the complainant, on 16.10.2007 in the morning hours around 5.00 O’clock the petitioner No.1 herein broke upon the lock of the shop, thrown the goods belonging to respondent No.3. At that time, a specific request was made not to precipitate such kind of action. Thereafter, at about 8.30 a.m. when the complainant heard the noise near his Shop Nos.6 and 7, he along with other persons had gone to that portion where he found that petitioner No.1 herein along with other three persons were shouting and conveying to throw the goods belonging to him out of the shop and also administering threats and it is upon that threat to death was given, the police was called who arrested the petitioner No.1 herein and other assailants and thereby, they have committed a serious offence of breaking open the lock of the shops belonging to the respondent No.3 – complainant as well as the shop in question, namely, Shop No.15. This complaint came to be investigated by the Investigating Officer and a detailed charge-sheet came to be filed on 28.11.2007 and the case came to be registered as Criminal Case No.2494 of 2007. So on the basis of this background of complaint, the petitioners have brought the present petition.

6. Mr.R.K.Shah, learned counsel appearing on behalf of the petitioners submitted that essentially the issue involved is of a civil nature and respondent No.3 has misused the criminal law by putting it to motion by filing a false and frivolous complaint. It was also contended by learned counsel that with a view to frustrate the proceeding of suit, the present complaint is filed and though there is a mandatory direction given in an injunction application on 27.5.2008 by the civil court, an attempt is made to convert a civil dispute into criminal and therefore, the respondent No.3 has abused the process of law. It was also contended by learned counsel that merely an unregistered agreement took place on 16.9.2004 about sale of the shop in question and thereby, it is contended that no absolute rights are transferred and therefore, filing of the complaint is nothing but a sheer abuse of process of law. He submitted that even if any grievance is left out by respondent No3, same could have been and can be ventilated in an appropriate proceeding and certainly, not by way of the complaint in question. It was also contended by learned counsel that petitioners are not having any criminal background and are belonging to a particular community as referred to in the petition and therefore, learned counsel submitted that their status in the society may also be considered so as to deal with the petition under Section 482 of the Cr.P.C. Learned counsel submitted that the trial has not commenced and therefore, in the background of this fact, even if charge-sheet is filed, the inherent jurisdiction under Section 482of the Cr.P.C. can well be exercised.

6.1 To substantiate these contentions, learned counsel for the petitioners has relied upon various decisions

# (i) Shakson Belthissor V/s. State of Kerala & Anr., reported in (2009) 14 SCC 466

# (ii) G. Sagar Suri & Anr. V/s. State of U.P. & Anr., reported in (2000) 2 SCC 636

# (iii) Ashok Chaturvedi & Ors. V/s. Shitul H. Chanchani & Anr., reported in (1998) 7 SCC 698

and

# (iv) State of Haryana & Anr. V/s. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335

and by citing these decisions, learned counsel requested the Court to allow the petition by quashing and setting the complaint in question. No other submissions are made except referred to above.

7. As against this, Mr. Balram D. Jain, learned counsel appearing for the original complainant – respondent No.3 herein has contended that the offence as alleged in the complaint is a serious offence and as if the law is not applicable to the petitioners, they took the law in their hands and committed an offence as alleged. It is also contended that there is no embargo under Section 482 of the Cr.P.C. that simply because the civil suit is pending, the criminal law may not be allowed to operate. It is submitted by learned counsel that the allegations levelled in the complaint are sufficient enough to attract the offences which are alleged in the complaint, especially when the investigation is undertaken thoroughly and the charge-sheet came to be filed, it is desirable not to exercise the power under Section 482 of the Cr.P.C. Learned counsel further submitted that there is no wide gap between filing of the civil suit and the complaint in question. Had there been so, possibly it could have been looked from a different angle that to frustrate the civil proceedings, the complaint came to be filed. But here the suit and the complaint are simultaneous in nature and the investigation is thoroughly undertaken and the charge-sheet is filed and therefore, no presumption be permitted under Section 482 of the Cr.P.C. to this Court to raise that no offence is made out. Learned counsel also submitted that sufficiency of ingredient having been established of offence alleged, at this stage, may not be a subject matter of exercise of jurisdiction under Section 482 of the Cr.P.C. and full opportunity be given to prosecution to establish the case by leading evidence and therefore, complaint proceedings may not be turtled when it is at the stage of commencement of trial. Learned counsel further submitted that an agreement came to be executed, the amount has been taken to the fullest extent and therefore, it would not open for the petitioner and assailants to take law in their hands and to commit an offene as if rule of law is not prevailing in the society and therefore, learned counsel requested not to take lenient view in any nature, more particularly when the charge-sheet came to be filed. Learned counsel for respondent No.3 also submitted that remedy alternatively available to the petitioners before the court below to apply for discharge if from the material in question, it is found that they are innocent. But such a fact finding exercising may not be undertaken in inherent jurisdiction of Section 482 of the Cr.P.C. and therefore, learned counsel submitted not to entertain the petition. While submitting this, learned counsel for the respondent submitted that charge-sheet has been filed long back and it is on account of this interception by the petitioners, the case has not been permitted to go on and therefore, even if the suit is pending, the prosecution is required to be given an opportunity to deal with the case which has been put up and establish prima facie by filing charge-sheet and therefore, learned counsel requested the Court not to entertain the petition under Section 482 of the Cr.P.C.

8. In addition to this, Mr.K.P.Raval, learned APP on the basis of material on record submitted that charge-sheet has been filed after thorough investigation and therefore, prima facie offence having been committed and established and therefore, the opportunity must be given to prosecution to establish the case put up against the petitioners. It is submitted that if the material in question indicates even remotely that they are innocent then, petitioners have got sufficient, adequate and alternate remedy to file an application for discharge from the prosecution and therefore, learned APP submitted that exercise of jurisdiction under Section 482of the Cr.P.C. may not be exercised to undertake a rowing inquiry. Such fact finding exercise will be allowed to be undertaken by the court below where the case is pending and therefore, learned APP opposed the petition and requested the Court not to entertain the same and dismiss the same. Learned APP also submitted that since after investigation, the charge-sheet has been filed, it cannot be presumed at this stage of the proceeding that there is abuse of process of law by respondent No.3 and in the background of this fact, it is requested to dismiss the petition.

9. Having heard the learned counsel for the respective parties, first and foremost consideration of the Court is, whether in the background of these facts and circumstances, it is worth to exercise jurisdiction under Section 482 of the Cr.P.C., more particularly by now, in series of decisions the law is propounded by the Hon’ble Apex Court. Before adverting to the case law, the Court would like to summarize as to whether the facts are such which would permit the Court to deviate from settled position of law on the issue of exercise of jurisdiction. From the record of the case, it is revealed that there was some transaction pertaining to Shop No.15 situated in J. P. Shopping Center. A fact is also emerged from the record that sizable amount of payment has been paid in respect to that incident by respondent No.3 – original complainant to the petitioner No.1 – Raysingbhai. It is also revealed from the record that an agreement came to be executed with possession of the shop in question wherein, it appears that a lame excuse put-forth after taking away money that said agreement is an unregistered agreement. It has also emerged from the record that the civil suit which is filed is not after a long lapse of period and it is also appearing that the criminal complaint and civil suit are simultaneously appearing to have been filed and therefore, from overall set of circumstance, it appears that the incident in question which is made the subject matter of complaint, there are all possibilities that the said incident must have been happened. It is also clear from the record that this very episode of 16.10.2007 is investigated by the Investigating machinery thoroughly and the specific charge-sheet has also been filed which would reveal that there is some prima facie case appearing against the petitioners. It is but for the fact that petitioners have approached this Court, said criminal case is no possible to be dealt with. It is also reflecting from the panchnama produced at Page-60 of the compilation that the locks were appearing in broken state of affairs of Shop No.15 and the panchnama also revealed that some incident of this nature has occurred and therefore, series of questions of fact are to be gone into at the time of proper adjudication of the case in question and therefore, a detail examination deserves to be undertaken to unearth the truth whether the crime is committed or not. On bare perusal of the complaint, it would appear that some incident as alleged has occurred and after recording the statements of relevant persons and after examining each and every circumstance in detail, the charge- sheet has been filed and therefore, it appears that the circumstances are not so simple that since the suit is filed with respect to transaction in question, crime has not been committed. The background of over all documents reflects series of disputed questions of fact and therefore, this Court is of the opinion that detail examination may not be possible of factual background in exercise of jurisdiction under Section 482 of the Cr.P.C. Considering this overall set of circumstance, simply because the civil litigation is going on, such solitary circumstance may not ipso facto suggests that no crime is committed. On the contrary, there is a specific allegation levelled in the complaint and attribution is made the manner in which the crime is alleged to have been committed and therefore, this appearing to be not a fit case to exercise inherent jurisdiction under Section 482 of the Cr.P.C.

10. To arrive at this conclusion, the Court is recalling of the proposition of law propounded by series of decisions of this Court as well as the Hon’ble Apex Court which postulate that disputed questions of fact are not the subject matter of exercise of jurisdiction under Section 482 of the Cr.P.C. It is also held by the Hon’ble Apex Court that simply because the civil litigation is going on between the parties, it is not to be presumed that crime is not committed and must have been lodged just with a view to abuse the process of law. Few relevant decisions of the Hon’ble Apex Court of a recent time worth to be taken note of in the background of present facts and circumstance. In a decision in case of

# N. Soundaram V/s. P.K.Pounraj & Anr., reported in (2014) 10 SCC 616

the Hon’ble Apex Court was confronted with the situation that a business transaction took place between the accused persons and the complainant’s husband and in respect of that dispute pertaining to business transaction, accused persons along with several other accused entered into the premises and ransacked it. Therein, the controversy was pertaining to recovery of money and therefore, complaint was not justified to be entertained as it is purely of a civil nature. In the background of that circumstance, the Hon’ble Apex Court examined the issue and propounded that power under Section 482 of the Cr.P.C. has to be exercised sparingly and cautiously just to prevent abuse of process of law or to secure the ends of justice. It has also been propounded by the Hon’ble Apex Court that inherent powers should not be exercised to stifle a legitimate prosecution and by holding so, the Hon’ble Apex Court exercising inherent powers set aside the order passed by the High Court and restore the criminal prosecution by further directing the Magistrate to expedite the trial. Relevant extract of the said decision are in Para.13, 14 and 15 which read, thus;

“13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exer- cised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling cir- cumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceed- ings in the exercise of power under Section 482 CrPC. [See MCD v. Ram Kishan Tohtagi.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vindo Raghuvanshi v. Ajay Arora]

14. An overall perusal of the materials placed before us makes out a prima facie case against the accused which requires to be decided by conducting a proper trial. At this stage the High Court cannot analyse and meticu- lously consider the evidence and anticipate whether it will end up in conviction or acquittal. This is not the stage to decide whether there is any truth in the allega- tions made but to form an opinion whether on the basis of the allegation a cognizable offence or offences al- leged has been prima facie made out. The guilt or other- wise of the accused can be proved only after conducting a full-fledged trial. In the circumstances, in our opinion, it is not proper for the High Court to interfere with the proceedings and quash the final report submitted by the police.

15. On the other hand we do not think that the High Court was right in opining that the dispute between the parties is civil in nature. This is a case where serious allegations were made against the accused party. Just because the allegations involve the factum of recovery of money it cannot be concluded that the complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions. In our con- sidered opinion the High Court seriously misdirected itself in coming to a conclusion that it is for the competent civil court to decide the said appeal…… In our opinion, in the background and circumstances of this case the High Court should not have exercised the power under Section 482 CrPC which resulted in miscarriage of justice.”

11. In another decision in case of

# Taramani Parakh V/s. State of Madhya Pradesh & Anr., reported in (2015) 11 SCC 260,

the Hon’ble Apex Court, while analyzing the scope of Section 482 of the Cr.P.C., held that where the factual foundation for an offence has been laid down, the Court should be reluctant to quash the proceedings, even on the premise that one or two ingredients having not been established prima facie and held that if there is a substantial compliance with the requirement of offence, the High Court should refrain from exercising jurisdiction under Section 482 of the Cr.P.C. Here, in the case on hand, it is prima facie established that incident in question as alleged in the complaint has happened and after thorough inquiry and investigation, a charge-sheet in detail came to be filed and therefore, in the opinion of this Court, the ratio laid down by the Hon’ble Apex Court in case of Taramati Parakh (supra) worth to be taken note of. The relevant extract of the said decision are in Para.11 and 12 which read, thus;

“11. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr., it was observed:

“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 482 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 offence or not. If the allegations are so patently absurd 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 interfere. 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 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 loath 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 specific law in force to the very initiation or institution and con- tinuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. 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 court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis 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 determine whether there is sufficient material on the basis of which the case would end in a conviction; 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 acquittal 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 possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial 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 charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal de- fects, 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 the 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 W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]

# Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]

# Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]

# Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]

# G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]

# Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]

# Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]

# State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497];

[pic]

# Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634];

# Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]

# Med- chl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]

# Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]

# V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]

# Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]

# Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]

# State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]

# Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]

# M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]

# Savita v. State of Rajasthan[(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571]

and

# S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise 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 appear to be satisfied if there is substantial compliance with the requirements of the offence.”

12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. & Ors. (Criminal Appeal No.2055 of 2014 decided on 6.9.2014), it was observed:

“9. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In

# Kans Raj vs. State of Punjab & Ors. [(2000) 5 SCC 207]

it was observed:-

“5………A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”

The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.

10. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court’s process, quashing jurisdiction can be exercised. Reference may be made to

# K. Ramakrsihna and Ors. vs. State of Bihar and Anr. [(2000) 8 SCC 547]

# Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. [(1998) 5 SCC 749]

# State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. [(1992) Suppl 1 SCC 335]

and

# Asmathunnisa vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259]

12. The Hon’ble Apex Cort has, in a decision in case of

# HMT Watches Limited V/s. M.A. Abida & Anr., reported in (2015) 11 SCC 776

laid down a proposition that in exercise of jurisdiction underSection 482 of the Cr.P.C., the disputed questions of fact are not to be determined. The issues related to that are worth to be allowed to be examined by the trial court after recording of an evidence and therefore, interference in the background of that disputed questions of fact by the High Court under Section 482 of the Cr.P.C. was held to be unsustainable and hence, in no uncertain terms held by the Hon’ble Apex Court that same would be travelling beyond the jurisdiction. Relevant extract of the said decision are in Para.11, 12, 13 and 14 which read, thus;

“11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others, this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: –

“17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal [pic]proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.’

12. In Rallis India Limited v. Poduru Vidya Bhushan and others, this Court expressed its views on this point as under:-

“12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.”

In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court.

13. Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1. In this connection, it is sufficient to mention that in the case of Pulsive Technologies P. Ltd. vs. State of Gujarat, this Court has already held that instruction of “stop payment” issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the N.I. Act. Earlier also in Modi Cements Ltd. vs. Kuchil Kumar Nandi, this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of N.I. Act gets attracted.

14. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after record- ing of the evidence, can be better appreciated.”

13. In the present facts and circumstances, learned counsel for the petitioners has contended that even if charge-sheet is filed, the Court can exercise jurisdiction under Section 482 of the Cr.P.C. and therefore, insistence upon that point of the learned counsel compels the Court to take an aid of another decision of the Hon’ble Apex Court in case of

# Teeja Devi alias Triza Devi V/s. State of Rajasthan & Anr., reported in (2014) 15 SCC 221

in which the Hon’ble Apex Court has dealt with the scope of Section 482 of the Cr.P.C. and held that no interference be made with the investigation by police because after filing of the report under Section 173 of the Cr.P.C., the affected party must have a remedy against the report in accordance with law and therefore, looking to the scope propounded by the Hon’ble Apex Court in the case referred to above, no power under Section 482 of the Cr.P.C. was permitted to be exercised. Relevant extract contained in Para.5 and 6 are worth to be taken note off and hence, reproduced hereunder :

“5. It has been rightly submitted by the learned Counsel for the Appellant that ordinarily power Under Section 482 of the Code of Criminal Procedure should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of Codeof Criminal Procedure. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper and it can be done only in rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious.

6. In support of the aforesaid proposition learned Counsel for the State of Rajasthan placed reliance upon paragraphs 15 and 16 of judgment of this Court in the case of

# State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728

14. Here, in the present case, after investigation charge- sheet has already been filed and series of disputed questions of facts are to be gone into and substantially, the offences which are alleged in the complaint are appearing to have occurred which the Investigating Authority has also found specifically by filing the charge-sheet and therefore, this being a position it is hardly appearing to this Court to exercise jurisdcition under Section 482 of the Cr.P.C. The recent trend and the principle of law propounded on exercise of power under Section 482 of the Cr.P.C. is to the effect that this power is to be exercised in rarest of rare case and sparingly and cautiously to be used. Even in the recent decision in case of

# Amanullah & Anr. V/s. State of Bihar & Ors., reported in AIR 2016 SC 1871

the Hon’ble Apex Court has not allowed the High Court to exercise jurisdiction under Section 482 of the Cr.P.C. and held that the High Court has exceeded its jurisdiction by appreciating the material placed before it. The Hon’ble Apex Court also observed that at an appropriate stage of the proceedings, the petitioner will have a remedy to ventilate his grievance. No rowing inquiry or a mini trial is permitted in exercise of powers under Section 482of the Cr.P.C. and therefore, even merits are also not to be examined in detail of the disputed factual background and therefore, considering overall set of circumstance, no interference is possible under Section 482 of the Cr.P.C. It also held that all the relevant statements and materials are to be allowed to examined at an appropriate stage. Therefore, considering this set of circumstance also, the Court is of the opinion not to exercise the jurisdiction in the present set of circumstance.

15. Of course, learned counsel for the petitioner has relied upon some of the judgments of the Hon’ble Apex Court of the past years but, there is a radical change in the proposition in a gradual process and therefore, the background of the present facts and circumstance and the recent pronouncement in the form of various decisions by the Hon’ble Apex Court lead the Court to an ultimate conclusion not to exercise jurisdiction. Learned counsel for the petitioner strenuously relied upon several decisions and contended to carve out an exception from the aforesaid proposition of law. But this Court is of the opinion that same is not possible to be permitted. In a decision of the Hon’ble Apex Court in case of Bhajan Lal (Surpa), no doubt the Hon’ble Apex Court has propounded that High Court can exercise the power under Section 482 of the Cr.P.C. But in the very same judgment in Para.103 the Hon’ble Apex Court has held that the power of quashing a criminal proceedings should be exercised very sparingly and with circumspection and that too, in rarest of rare case. The extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. So, on the contrary, the Hon’ble Apex Court has put the High Court on caution as to in which circumstance, the power underSection 482 of the Cr.P.C. be exercised and therefore, this decision on the contrary supports the case of respondents.

16. In a decision in case of G. Sagar Suri (Supra), no doubt the Hon’ble Apex Court has propounded that the High Court can exercise the jurisdiction even when an application for discharge of the accused is pending with the trial court, however, such power is advised to be exercised casually to prevent the abuse of process of law. The background of that fact is altogether different and on the contrary, this judgment has not laid down any law that the High Court has to exercise the powers under Section 482 of the Cr.P.C. and therefore, case referred to above is not laying down any straight jacket proposition of law that the High Court has to exercise the powers and therefore, not helpful to the learned counsel for the petitioner.

17. In a decision in case of Shakson Belthissor (Supra), again, while dealing with the very same issue, the Hon’ble Apex Court has laid down that the High Court can quash the FIR as well as charge-sheet if it appears to the Court that same tantamounts to be an abuse of process of Court. This Court is of the opinion that the High Court cannot exercise the powers under Section 482 of the Cr.P.C. even at a stage of charge-sheet. But the background of present facts on hand is revealing some offences having been specifically committed and the material recovered during the process of investigation does reveal some guilt on the part of petitioners and therefore, this Court is of the opinion that these allegations are prima facie established, require some adjudication. The society is governed by rule of law. If such kind of episodes are allowed to be undertaken and ignored, the same would be an alarm to the citizens and therefore, the opinion of the Court is that prima facie, when the investigation has revealed some offence having been committed by the petitioners, the prosecution must be given a full opportunity to establish the case to bring the assailants to the rule of law and therefore, even in the decision referred to above, this Court agreeing to the proposition not disputing but, respectfully coming to a conclusion that the case on hand deserves to be adjudicated upon and therefore, even in this very case the exercise of power is permitted to be exercised. Said proposition of law laid down in the aforesaid decision may not be helpful to the petitioner as in that particular case, the Court found that the allegations were frivolous, vexatious and oppressive, the case was dealt with in that particular manner. Therefore, background of present case demands that the Court should not interfere in exercise of jurisdiction under Section 482 of the Cr.P.C.

18. In a decision in case of Ashok Chaturvedi (Supra), the Hon’ble Apex Court has laid down that merely because an accused has a right to plead at the time of framing of charge, he is not debarred from invoking jurisdiction under Section 482 of the Cr.P.C.. As stated earlier, this Court is not disputing the proposition of law but, is of the humble opinion that each case is depending upon on its own merit and it is settled proposition of law that if there is a slight change in the background of fact, it would make the world of difference in applying precedent.

19. From overall analysis of the evidence on record and upon examination of the case on hand in detail, this Court is of the opinion that petition does not deserve to be entertained. The recent pronouncement and the law laid down in exercise of power under Section 482 of the Cr.P.C. is directly applicable and therefore, the background of present facts is not warranting to exercise jurisdiction under Section 482 of the Cr.P.C. Hence, the present Special Criminal is dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated.

20. However, it is made clear that if the petitioners are inclined to take an appropriate measure before the court below, the observations made by this Court are to be treated to have been made in exercise of inherent jurisdiction of Section 482 of the Cr.P.C.

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