Allahabad High Court
Sakeer And Another vs State Of U.P. And Another on 6 March, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 13727 of 2006 Applicant :- Sakeer And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Shukla Counsel for Opposite Party :- Govt. Advocate,Rajeev Lochan Shukla Hon'ble Sudhir Agarwal,J.
1. Heard Sri Santosh Shukla, learned counsel for applicants and learned A.G.A. for State.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash proceedings of Case No.3512 of 2005, under Sections 504, 436, 427 IPC, pending in the Court of Chief Judicial Magistrate, Auraiya.
3. After investigation, Police submitted Final Report thereagainst Complainant filed protest petition. Magistrate has examined material collected by Investigating Officer and forming an opinion that Police has wrongly submitted Final Report and prima facie offence under Sections 504, 436, 427 IPC is made out against applicants, hence, taking cognizance, Court has summoned applicants for trial under Sections 504, 436, 427 IPC vide order dated 31.08.2005. Relevant extract of order reads as under :
^^eSsus oknh ds fo}ku vf/koDrk ds rdksZ dks lquk o i=koyh dk lE;d :i ls voyksdu fd;kA lk{kh lqjs'k dq'kokgk us na0iz0la0 dh /kkjk 161 ds vUrxZr vafdr fd;s x;s C;kuksa es dgk gS fd fnukad 27-3-2004 dks le; djhc 8 cts 'kke eS rFkk esjs xkWo ds iIiw iq= jkt cgknqj] iIiw o ';ke ckcw ds edku ds lkeus lM+d ij [kM+s gksdj vkil esa ckr&phr dj jgs FksA vkSj mlh le; ';ke ckcw dks xkWo ds ldhj o vdhy xkyh&xkykSt djus yxs vkSj dg jgs Fks fd rqus ;gkW nhokj D;ksa yxk nh gSA ';ke ckcw us dgk xkyh D;ksa ns jgs gks bl ckr ij tsc ls ekfpl fudkydj ldhj o vdhy us ';ke ckcw ds edku esa vkx yxk nh vkSj lM+d ij gksdj mRrj dh rjQ Hkkx x;s bl ?kVuk dks xkWo ds cgqr ls yksxksa us ns[kk rFkk vkx cq>kbZ vkx ls tydj ';ke ckcw dk dkQh lkeku u"V gks x;kA lk{kh iIiw us vius C;ku /kkjk 161 na0ia0la0 esa dgk gS fd fnukad 27-3-2004 dks 8 cts 'kke eS rFkk lqjs'k] ';ke ckcw ds edku ds lkeus [kM+s gksdj ckr&phr dj jgs Fks mlh le; ldhj o vdhy ';ke ckcw ds ikl vk;s vkSj xyh&xykSt djus yxs vkSj dgus yxsa fd rwus ;gkW nhokj D;ksa yxk;h gSA ';ke ckcw us dgk fd ;g tehu esjh gS xkyh er nks 'kdhj o vdhy us tsc ls ekfpl fudky dj ';ke ckcw ds edku esa vkx yxk nh ge yksxksa us rFkk xkwo okyksa us nkSM+dj vkx cq>kbZA ';ke ckcw dk vkx ls dkQh lkeku tydj u"V gks x;kA lk{kh gkfde dk c;ku na0iz0la0 dh /kkjk 161 dk vafdr fd;k x;k ftlus Hkh vfHk;kstu dFkkud dk leFkZu fd;k gSA oknh ';ke ckcw us Hkh vius C;ku na0iz0la0 dh /kkjk 161 esa dgk gS fd fnukad 27-3-2004 dks le; djhc 8 cts eS vius njokts ij HkkbZ;ksa ds lkFk cSBk Fkk mlh le; djhc 8 cts ldhj o vdhy xkyh&xykSt nhokj ds ckor nsus yxs vkSj ge yksxksa us xkfy;kW nsus ls euk fd;k rks mlh le; ldhj us vius tsc ls ekfpl fudkydj mls tykdj esjs NIij es vkx yxk nh vkSj vkx yxkus ds ckn nksuksa O;fDr xkyh nsrs gq;s Hkkx x;s NIij esa vkx yxus ds dkj.k dkQh lkeku jk[k gks x;k lk{kh oknh ';ke ckcw o lqjs'k] iIiw o gkfde us izFke lwpuk fjiksVZ dk leFkZu fd;k gSA vfHk;qDr ldhj o vdhy ds fo:) Hkk0na0la0 dh /kkjk 504] 436] 427 dk vijk/k izFke n`"V;k curk izrhr gksrk gSA**
4. Learned counsel for applicants contended that Police had submitted Final Report hence it was not open to Magistrate to reject the same and taking cognizance issued process to applicants only on protest petition of complainant/Informant. He further submitted that there is no evidence. It was a case of malicious prosecution but still Magistrate has taken cognizance hence Magistrate has wrongly rejected Final Report and taken cognizance and issued summons against applicants illegally.
5. Learned A.G.A., however, supported order of Magistrate and submits that Court below has examined material collected by Investigating Officer and has rightly issued summons.
6. I have considered rival submissions of counsel for the parties.
7. Two questions up for consideration in this application are :
(i) Whether Magistrate has power to reject Final Report and after taking cognizance could issue process under Section 190 Cr.P.C.; and
(ii) Whether it is case of malicious prosecution and this Court would be justified in quashing process relying on contention of applicants that there is no evidence.
8. Coming to question (i), I find that Magistrate has enough power to reject Final Report and issue process.
9. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is reproduced as under:
"190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."
10. Chapter XV, thereafter has four Sections, i.e., Section 200 to 203, which deal with complaint to Magistrate. Chapter XVI deals with commencement of proceedings before Magistrate and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence.
11. If a Magistrate finds that Police has not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused.
12. Supreme Court in Tula Ram Vs. Kishore Singh AIR 1977 SC 2401 said that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with.
13. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), Supreme Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in the alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. Following observations of Court fortify what is observed above:
"16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and others Vs. Kisohre Singh 1978 (1) SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with." (emphasis added)
14. The observations made in para 16 and 17 in M/s India Carat Pvt. Ltd. Vs. State of Karnataka (supra) make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.
15. However, it is also true that at the stage of issuing process to the accused, Magistrate is not required to record detailed reasons. In U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745, after referring to a decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order."
(emphasis added)
16. In Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors., (2003) 4 SCC 139, wherein paragraph 9, Court said that in determining the question whether any process has to be issued or not, Magistrate has to be satisfied whether there is sufficient ground for proceeding or not and whether there is sufficient ground for conviction; whether the evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of inquiry.
17. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465.
18. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7) SCC 768, Court said as under:
"The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 119(1)(b) and direct the issue of process to the accused."
(emphasis added)
19. Having said so, Court has also made it clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 for taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XIV.
20. A similar view has also been expressed in Rakesh and another Vs. State of U.P. And another 2014 (13) SCC 133 where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) 1980 (4) SCC 631.
21. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court said as under:
"11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."
(emphasis added)
22. In Sunil Bharti Mittal Vs. Central Bureau of Investigation 2015 (4) SCC 609, Court said:
"... even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and Anr. 2003 (6) SCC 195. Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer."
23. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference.
24. In Pakhando and others Vs. State of U.P. and another 2001 (43) ACC 1096, a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:
(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;
(II) He may take cognizance under Section 190(I)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(I)(b) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
25. In view of above discussion, I do not find any error in the process adopted by Court below so as to warrant interference in exercise of jurisdiction under Section 482 Cr.P.C.
26. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
27. Recently, above view has been reiterated by Apex Court in Criminal Appeal No.175 of 2020 (State of Madhya Pradesh Vs. Yogendra Singh Jadaun and another) decided on 31.01.2020.
28. Considering the matter in the light of aforesaid exposition of law, I find that Magistrate has not relied on any material placed by Informant along with Protest Petition but after considering material collected by Investigating Officer, which included statements of Complainant/Informant and witnesses recorded under Section 161 Cr.P.C., has found sufficient material forming an opinion that there was a prima facie case for trial of applicants under Sections 504, 436, 427 IPC wherein no illegality could be shown.
29. Question (i) is, therefore, answered against applicants.
30. Now coming to question (ii), I find that scope of interference under Section 482 Cr.P.c. is very limited and defence of accused applicants cannot be considered at this stage.
31. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this, juncture in absence of evidence. Supreme Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. In Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
32. Recently, above view has been reiterated in Criminal Appeal No.175 of 2020 (State of Madhya Pradesh Vs. Yogendra Singh Jadaun and another) by Supreme Court vide judgment dated 31.01.2020.
33. The principles which justify interference under Section 482 Cr.P.C. by Court have been laid down in various authorities in which Supreme Court's judgment in State of Haryana vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 was leading precedent and thereafter matter has also been examined by even Larger Benches.
34. In State of Haryana vs. Bhajan Lal and others (supra) issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what has been laid down therein in paragraph 102, has been repeatedly followed and reiterated consistently. In very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors. , AIR 2020 SC 350, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :
"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 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 cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and 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 instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge." (emphasis added)
35. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :
"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 circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (emphasis added)
36. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors. , 2010 (6) SCC 243, Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection.
37. Supreme Court in Jeffrey J. Diermeier (supra) infact referred to an earlier Three Judges' Bench judgment in Som Mittal Vs. State of Karnataka, 2008 (3) SCC 753, to explain phrase "rarest of rare cases". In Som Mittal (supra), Court also said that exercise of inherent power under Section 482 CrPC is not a rule but exception. Exception is applied only when it is brought to notice of Court that grave miscarriage of justice would be added if trial is allowed to proceed where accused would be harassed unnecessarily or if trial is allowed to linger when prima facie it appears to Court that trial would likely to be ended in acquittal. Whenever question of fact is raised which requires evidence, Courts always said that at pre trial stage i.e. at the stage of cognizance taken by Magistrate power under Section 482 CrPC would not be appropriate to be utilized, since, question of fact has to be decided in the light of evidence which are yet to be adduced by parties.
38. In Lakshman vs. State of Karnataka and others, 2019 (9) SCC 677 Court said that it is not permissible for High Court in application under Section 482 CrPC to record any finding wherever there are factual disputes. Court also held that even in dispute of civil nature where there is allegation of breach of contract, if there is any element of breach of trust with mens rea, it gives rise to criminal prosecution as well and merely on the ground that there was civil dispute, criminality involved in the matter cannot be ignored. Further whether there is any mens rea on part of accused or not, is a matter required to be considered having regard to facts and circumstances and contents of complaint and evidence etc, therefore, it cannot be said pre judged in a petition under Section 482 CrPC.
39. In Chilakamarthi Venkateswarlu and Ors. Vs. State of Andhra Pradesh and Ors., AIR 2019 SC 3913, Court reiterated that inherent jurisdiction though wide and expansive has to be exercised sparingly, carefully and with caution and only when such exercise would justify by tests specifically laid down in Section itself. In paragraph 14 of judgment, Court said :
"14. For interference Under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief." (emphasis added)
40. Court also said that in exercise of jurisdiction under Section 482 CrPC it is not permissible for the Court to act as if it were Trial Court. Court has only to be prima facie satisfied about existence of sufficient ground for proceeding against accused. For that limited purpose, Court can evaluate material and documents on record but it cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting accused. High Court should not exercise jurisdiction under Section 482 CrPC embarking upon an enquiry into whether evidence is reliable or not or whether on reasonable apprehension of evidence, allegations are not sustainable, or decide function of Trial Judge. For the above proposition, Court relied on its earlier authority in Zandu Pharmaceuticals Works Limited and others vs Mohd. Sharaful Haque and others, 2005 (1) SCC 122.
41. Power under section 482 CrPC should not be exercised to stifle legitimate prosecution. At the same time, if basic ingredients of offfences alleged are altogether absent, criminal proceedings can be quashed under Section 482 CrPC. Relying on M.A.A. Annamalai Vs. State of Karnataka and Ors. , 2010 (8) SCC 524, Sharda Prasad Sinha Vs. State of Bihar, AIR 1977 SC 1754 and Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Ors., 1976 AIR 1976 SC 1947, Court in Chilakamarthi Venkateswarlu and Ors. (supra) said that where allegations set out in complaint or charge sheet do not constitute any offence, it is open to High Court exercising its inherent jurisdiction under Section 482 CrPC to quash order passed by Magistrate taking cognizance of offence. Inherent power under Section 482 CrPC is intended to prevent abuse of process of Court and to clear ends of justice. Such power cannot be exercised to do something which is expressly barred under CrPC. Magistrate also has to take cognizance applying judicial mind only to see whether prima facie case is made out for summoning accused persons or not. At this stage, Magistrate is neither required to consider FIR version nor he is required to evaluate value of materials or evidence of complainant find out at this stage whether evidence would lead to conviction or not.
42. It has also been so observed in Rakhi Mishra Vs. State of Bihar and Ors., 2017 (16) SCC 772 and Sonu Gupta Vs. Deepak Gupta and Ors. , 2015 (3) SC 424 and followed recently in Roshni Chopra and others vs. State of U.P. and others, 2019 (7) Scale 152. Here Court also referred to judgment in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors., (2003) 4 SCC 139, wherein paragraph 9, Court said that in determining the question whether any process has to be issued or not, Magistrate has to be satisfied whether there is sufficient ground for proceeding or not and whether there is sufficient ground for conviction; whether the evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of inquiry.
43. However, it is also true that at the stage of issuing process to the accused, Magistrate is not required to record detailed reasons. In U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745, after referring to a decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order."
(emphasis added)
44. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465.
45. In a Three Judges' Bench in Parbatbhai Aahir and Ors. Vs State of Gujarat and Ors, 2017 (9) SCC 641, Court has observed that Section 482 CrPC is prefaced with an overriding provision. It saves inherent power of High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Paragraph 15 of the judgment Court summarized as under :
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." (emphasis added)
46. Above observations have been reiterated in Arun Singh and other Vs State of U.P. passed in Criminal Appeal no.250 of 2020 (arising out of Special Leave Petition (Crl.) No. 5224 of 2017), decided by Supreme Court on 10.02.2020.
47. Question (ii) therefore is also answered accordingly.
48. In view thereof, I do not find that applicants are entitled for any relief as prayed for in the present application. Application lacks merit and is accordingly dismissed.
49. Interim order, if any, stands vacated.
Order Date :- 6.3.2020 Ashish Pd.