Karnataka High Court
Dr.B.G.Jawali S/O Gurushantappa vs The State Of Karnataka on 31 July, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.9058/2010
Between:
1. Dr. B.G. Jawali
S/o Gurushantappa
Age: 63 Years,
Occ: Ex-President
H.K.E. Society,
Gulbarga,
R/o Gulbarga.
2. Dr. B.D. Maitri
S/o Dhulappa Maitri
Age: 61 years,
Occ: Principal,
P.D.A. College of Engineering,
R/o Gulbarga.
... Petitioners
(By Sri. Baburao Mangane, Advocate)
And:
1. The State of Karnataka
Through Station Bazar P.S.
Gulbarga.
2. Sri. Shivarudrappa
S/o Kari Siddappa Kanta
(S.K. Kanta), MSK Mills Quarters,
Gulbarga.
... Respondents
2
(R-1 by Sri. Maqbool Ahmed, HCGP)
(R-2 by Sri. S.V. Deshmukh & Sanjay Kulkarni, Advocates)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to call for records in CC No.2335/2007,
pending on the file of the Principal Civil Judge (Jr.Dn.) and
JMFC II at Gulbarga and further be pleased to reverse and
set aside the order dated 15.10.2007 directing registration of
case against the petitioners and 15 others for the offences
alleged against them for their appearance in the case after
taking cognizance of the offences complained in the final
report filed and further be pleased to quash the entire
proceedings.
This petition having been heard on 07.07.2017,
reserved for orders and coming on for pronouncement of
orders this day, the Court delivered the following:-
ORDER
This petition is filed by the petitioner/accused No.1 and 17 under Section 482 of Cr.P.C., praying to quash/ set aside the order dated 15.10.2007 in C.C.No. 2335/2007, pending on the file of the Prl. Civil Judge (Jr.Dn.) and JMFC-II Court, Gulbarga.
2. Brief facts of the case are that, an aircraft which was used for fighting war, was gifted to Nizam of Hyderabad during the year 1941. Thereafter, aircraft was found lying in the vacant place belonging to 3 Gulbarga Municipality and P.D.A. Engineering College got the possession of the said aircraft in the year 1958 for being given to it by Gulbarga Municipality for the purpose of study for the Engineering students.
Thereafter, a news item was published in the India Today, stating that the Hyderabad Karnataka Education Society (hereinafter called as 'H.K.E. Society' for short) passed a resolution regarding disposal/sale of said aircraft and to acquire a Helicopter, antique motor vehicle, antique scooter and antique bicycle in exchange of the said aircraft. Accordingly, the HKE Society acquired them from one Girish Naidu in exchange for the aircraft for study purpose by the Engineering students. It is further alleged that, the accused persons have committed the offence by disposing of the said aircraft. On the basis of the said complaint, a case was registered in Cr.No.323/2002 and after investigation, charge sheet came to be filed against accused persons.
The trial Court by its order dated 15.10.2007 directed 4 for registration of the case and issued summons to the accused by taking the cognizance. Being aggrieved by the said order, the petitioners-accused Nos.1 and 17 are present before this Court.
3. Though this petition was filed on 12.7.2010, on 30.9.2010, interim stay was granted by admitting the case. When the matter came up for final hearing on 11.2.2013, a submission was made to the effect that accused Nos.2 to 4 and 6 to 13 had filed a petition in Crl.P.No.5507/2007 under Section 482 of Cr.P.C and the same was allowed and quashed the entire proceeding against the said accused therein. Accused No.5 is said to be dead and accused No.16 is absconding. It is further submitted that, a Special Leave Petition has been filed before the Hon'ble Apex Court and the same was pending for admission, as such, the matter was kept in abeyance, till disposal of the said matter, pending in S.L.P.No.38760/2012. On 5 23.6.2017, it was brought to the notice of this Court that the said SLP has been disposed off.
4. The learned counsel for the petitioners-
accused submit that the ingredients of the offences mentioned in the charge sheet do not attract to this case so as to constitute an offence. He further contended that, accused No.1 was the Chairman of the H.K.E. Society and he was nothing to do with the administrative aspect of the said Society. He used to only preside over the meetings and as such he was not having any extra power to deal with the affairs of the sale of aircraft in question. He further contended that, all the correspondence would clearly goes to show that the said aircraft belongs to the HKE Society and there is no breach of conditions committed by the petitioners. If at all, any act is done, it is the Trust, which has dealt with the affairs of the said act. He further contended that, while taking the cognizance, the learned 6 Magistrate has not applied his mind and has only filled up the printed form and issued the summons to the accused. As such, the proceeding initiated against the petitioners-accused is not sustainable in law and the same is liable to be quashed. On these grounds he prayed to allow the petition.
5. Per contra, the learned High Court Government Pleader vehemently argued and contended that, the Chairman of the Trust was in the helms of the affairs and actually he has presided over the meetings.
Further the record discloses that, he has actually participated in the meetings for disposal of the aircraft, which was lying in the premises of P.D.A. Engineering College, Gulbarga. He further contended that, petitioner-accused No.17 along with petitioner No.1, being the head of the institution and without there being any permission, either to sell or exchange from the Government, sold the aircraft in favour of one Sri. 7 Girish Naidu. He further contended that, the said aircraft is the property of the Government and it is antique piece, which was being used for fighting war and same was gifted to Nizam of Hyderabad. Under the circumstances, the said aircraft belongs to the Government. He further contended that, Air Marshall has wrote a letter stating that crashed and unclaimed aircraft of foreign origin should rightfully be the property of Government of India. When that being the case, the HKE Society ought not to have sold the aircraft. It is further contended that, the aircraft was entrusted in possession and control of the H.K.E., Gulbarga, and the aircraft was only meant for the purpose of study of Engineering students. When the property is belonging to the Government and the same was given to the HKE society, before dealing with the said property, the President and Administrator ought to have taken the necessary permission. In this behalf, the Chairman and the Administrator have committed an 8 offence as contemplated under the law. He further contended that, the Investigating Officer after fully investigating the case has filed the charge-sheet and thereafter the learned Magistrate after careful consideration of the material and after applying his judicious mind, issued the summons to the accused persons. The contention of the learned counsel for the petitioners in his behalf does not hold any water. On these grounds, he prays for dismissal of the said petition.
6. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
7. The first and foremost contention taken by the learned counsel for the petitioners are that, the trial Court without application of mind has taken the cognizance. As could be seen from the records after the complaint, police investigated the case and filed the 9 charge sheet against the accused persons. Thereafter, the jurisdictional Magistrate has taken the cognizance under Section 190(1)(b) of Cr.P.C. Taking cognizance it indicates that taking the judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by some persons.
As could be seen from the order sheet, it indicates that the Magistrate has perused the charge sheet material and thereafter he has taken the cognizance and has ordered for issuance of the summons to the accused persons. Taking the cognizance means judicial application of mind by the Magistrate to the facts mentioned in the complaint for taking further action.
On perusal of the records, it indicates that the Magistrate after application of mind, has taken the cognizance. Even though the order of taking cognizance is a printed form, but same discloses that the Magistrate after perusal of the charge sheet papers, took the cognizance of the offence by specifically writing the 10 sections in his own hand writing against whom the cognizance has been taken. On perusal of all the records, it clearly indicates that the learned Magistrate has applied his mind and thereafter has taken the cognizance of offences. While taking the cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence or in other words, to find out whether prima facie case has been made out for summoning the petitioners-accused. This proposition of law has been held by the Hon'ble Apex Court in the case of Sonu Gupta Vs. Deepak Gupta and another reported in (2015) 3 SCC 424, wherein the Hon'ble Court has held as under;
"8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our 11 considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out weather prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage weather the materials will lead to conviction or not.
9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the 12 Court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the Court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trail.
10. The learned Senior Advocate for the appellant Mr Aman Lekhi has relied upon a catena of judgement such as:
(i) Bhim Lal Shah v. Bisu Singh reported in 1912 SCC OnLine Cal 269: (1912-13) 17 CWN 290
(ii) State of Orissa v. Saroj Kumar Sahoo reported in (2005) 13 SCC 540: (2006) 2 SCC (Cri) 272
(iii) Riyasat Ali v. State of U.P. reported in 1991 SCC OnLine All 1066: 1992 Cri LJ 1217
(iv) Nupur Talwar v. CBI reported in (2012) 11 SCC 465: (2013) 1 SCC (Cri) 689
(v) Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986 13
(vi) Asmathunnisa v. State of A.P. reported in (2011) 11 SCC 259:
(2011) 3 SCC (Cri) 159
(vii) Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.
reported in (2000) 3 SCC 269:
2000 SCC (Cri) 615
(viii) State of U.P. v. Paras Nath Singh reported in (2009) 6 SCC 372: (2009) 2 SCC ( L & S) 200
(ix) B. Saha v. M.S. Kochar reported in (1979) 4 SCC 177:
1979 SCC (Cri) 939
(x) Matajog Dobey v. H.C. Bhari reported in AIR 1956 SC 44:
1956 Cri LJ 140 ; and
(xi) P.K. Pradhan v. State of Sikkim reported in (2001) 6 SCC 704:
2001 SCC (Cri) 1234 These need no discussion because settled propositions of law reiterated therein have already been noticed earlier.
11. In the present case, on going through the order of the learned Magistrate, we are satisfied that the same suffers from no illegality. The specific case of the appellant that FIR was registered on an undated photocopy of a petition attributed to the appellant but not bearing her original signature could not have been rejected by the learned Magistrate at the present stage especially in view of the report of investigation by the CID which was also called for and there being no dispute that FIR No. 73 of 2002 was registered only on the basis of a photocopy on which the signature is not in 14 original and hence in our considered view the Hon'ble High Court grossly erred in exercise of its jurisdiction by directing the appellant complainant to lead further evidence and produce the original documents to show forgery. If the FIR is admittedly on the basis of only a photocopy of a document allegedly brought into existence by the accused persons, the High Court erred in directing the appellant to produce the original and get the signatures compared.
12. In our considered view, the High Court fell into error of evaluating the merits of the defence case and other submissions advanced on behalf of the accused which were not appropriate for consideration at the stage of taking cognizance and issuing summons.
* * * * *
17. Reliance was also placed on behalf of the respondents upon the judgement in State of Karnataka v. L. Muniswamy reported (1977) 2 SCC 699: 1977 SCC (Cri.) 404. In that case, the accused persons pleaded for discharge before the Sessions Court which was not accepted but the High Court quashed in the case of L. Muniswamy V. state of Karnataka reported in 1975 SCC OnLine Kar 137: ILR 1976 KAR 326 the proceedings on the ground that there was no materials on the record on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts of that case showing lack of any data or material which 15 could create a reasonable likelihood of conviction for any offence in connection with attempted murder of the complainant. That judgement also is of no help to the respondents herein in the light of allegations made in the complaint, the statement of the complainant on solemn affirmation and the CID report of investigation on which the complainant placed reliance and which was perused by the learned Magistrate.
18. These appeals are therefore allowed, the judgement and order under appeal passed by the High Court is set aside. We also set aside the orders passed by the learned Sessions Court dated 30-11-2011 whereby summoning order was set aside in respect of Accused 6 to
9. In other words, the order of summoning passed by the learned Magistrate dated 2-5- 2011 is restored. Before parting with the order we make it clear that any observations in this order shall not prejudice the case of either of the parties before the Court below and the criminal complaint case of the appellant must proceed on its own merits strictly in accordance with law."
8. Keeping in view the ratio as held by the Hon'ble Apex Court and on perusal of the records it indicates that the learned Magistrate after applying his judicial mind has taken the cognizance. As such, the said contention is not going to help the petitioners.
169. The second contention of the learned counsel for the petitioners-accused is that, remaining accused persons who filed a criminal petition No.5507/2007, challenging the proceedings, initiated against them, came to be allowed on 16.6.2010 by quashing the proceedings as against accused Nos.1 to
13. As such, he prays to apply the principles of parity and requests to quash the proceedings against the petitioners herein.
10. I have carefully gone through the certified copy of the order. The said order does not discuss in detail with regard to the manner in which the offences has not been made out by the petitioners-accused therein. Only by observing that, there are no ingredients forthcoming and in the absence of any document to show that aircraft has been handed over with certain conditions and the case against the petitioners-accused would not result in any useful 17 purpose, the proceedings have been quashed. But, on perusal of the records and the statement of the witnesses, it clearly transpires that, the said aircraft has been given for the purpose of study for the Engineering students. Admittedly, the aircraft is the property of the Government of India, which is having the relic of aviation history and it was a antique piece. When the government property has been entrusted to the HKE Society, though there is no condition with reference to transfer and selling of the said aircraft, but when once, it has been given or entrusted for the purpose of study for the Engineering students and it was in their possession and custody, under such circumstances, without obtaining the prior permission from the Government or some other persons who is authorized to do so, if the said property has been sold to a third party who is not having any other interest in the society, under such circumstances, the said act of the petitioners-accused amounts to nothing but breach of 18 trust and definitely it will be an offence under the Indian Penal Code. If it is a breach of condition, under such circumstances, it is covered under the contract and not under the Indian Penal Code. On perusal of records prima facie there appears to be some material as against petitioners-accused in this case. The allegations of the petitioners-accused in the said case where the proceedings have been quashed and in this case are quite different. Under the circumstances, the grounds urged by the learned counsel for the petitioners-accused that already the remaining accused persons have been discharged by quashing the proceedings and the same benefit should be given to the present petitioners-accused also does not help in any manner.
11. Be that is it may. For the purpose of brevity, I quote, Section 405 of I.P.C., which reads as under;
19"405. Criminal breach of trust.-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that properly in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he had made touching the discharge of such trust, or wilfully suffers any person so to do, commits "criminal breach of trust".
[1].-A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provision Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
2.-A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administrated by the Employees' State Insurance Corporation established under the Employees' State 20 Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]"
12. On meaningful understanding of the said provision which says in any manner entrusted with property, if it is converted to his own use of that property or dishonestly uses or dispossesses in violation of prescribed mode of use of such property express or implied, it is going to satisfy the provision of the said provision and petitioners accused are liable to be prosecuted for the same. There is material to show that the aircraft was entrusted with H.K.E. Society for the purpose of study of the Engineering students. An offence of criminal breach of trust involves entrustment of property, dishonest mis-appropriation or conversion of the property by the agent to his own use, disposal in 21 violation of mandatory of law prescribed, and dishonest use or disposal of property in violation of the terms of any legal contract either express or implied. In this background, the aircraft which is the property of the Government legally they cannot do any thing except for the purpose for which it has been entrusted. In that light, there is material as against the petitioners which requires to be proved by leading evidence. In this behalf, there is no force in the submission of the learned counsel for the petitioners and same is liable to be rejected. Even other facts reveal that without authority and title by creating documents, they have sold the aircraft. In that light also there is material against the petitioners-accused.
13. The next contention which has been raised by the learned counsel for the petitioners-accused is that accused No.1 being the Chairman was not having any authority to deal with the said transaction so also 22 with accused No.17. But, on perusal of the records and the statement of one Sri. Girish Naidu, recorded on 20.6.2003, wherein he has stated that when he approached the accused No.1, he instructed him to come to his residence and there the matter was discussed and the accused No.1 informed him that he will keep the said subject in the meeting of the HKE Society and thereafter in consultation with the others, he would take steps for selling of aircraft. Even other witnesses have also deposed that the accused No.1 presided over the said meetings and thereafter at the instance of accused No.17, the aircraft was handed over to the said Girish Naidu. Even the letter correspondence, which has taken place between Girish Naidu and accused No.1- Dr.P.G. Jawali, the President of HKE Society, Gulbarga are part of the charge sheet material and all the correspondence have been made by addressing the President, the accused No.1. Even the resolution dated 19.3.2002, would discloses that 23 accused Nos.1 was present in the meeting and he had also signed the resolution. When that being the case and when accused Nos.1 and 17 have actively participated, they were at the helms of the affair, under such circumstances, the contention of the learned counsel for the petitioners-accused that they were not having any authority to deal with the transaction is not acceptable in law.
14. This Court while exercising its jurisdiction under Section 482 of Cr.P.C. must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations leveled by the prosecution against the accused persons. Likewise, it is not stage for determining how weighty the defences raised on behalf of the accused is. This proposition of law has been laid down in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor reported in (2013) 24
3 SCC 338, wherein the Hon'ble Court has held as under;
25. Section 482 CrPC is being extracted hereinunder:
"482. Saving of inherent power of High Court:- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice.
26. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568: 2005 SCC (Cri) 415 (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent- complainant), wherein it was held thus:-
(SCC p.581, para 29) "29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited 25 whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case reported in State of Hariyana V. Bhajan Lal reported in 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426."
(emphasis is ours).
27. Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar reported in (2008) 14 SCC: 1 (2009) 1 SCC (Cri) 721 wherein in the main order it was observed that the width of the powers of the High Court under Section 482 Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 Cr.P.C., the High Court was free to consider even material that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of this case.
2628. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
2715. Be that as it may. Whether petitioners-
accused were having authority to deal with or not, whether they are not having any authority to deal with or not is a matter which has to be considered and appreciated at the time of trial. At this pre-mature stage, it cannot be held that there is material or no material to proceed against the petitioners-accused No.1 and 17 herein. How and under what circumstances the provisions of Section 482 of Cr.P.C. has to be exercised by the High Court has been elaborately discussed by the Hon'ble Apex Court in the case of STATE OF ORISSA AND ANOTHER vs. SURAJ KUMAR reported in 2005 (13) SC 540. The Hon'ble Court in para Nos.9 and 10, has been held as under;
"9. In R. P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.28
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or 29 whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426. A note of caution was, however, added that 30 the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(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 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 31 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 Act concerned (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 Act concerned, 32 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."
16. Keeping in view the above said proposition of law, the power possessed by this Court under Section 482 of Cr.P.C. are very wide and very plenitude of the power requires great caution in its exercise. While exercising such power Court must be careful and it must be based on sound principles. The inherent power should be exercised to stifle a legitimate prosecution.
When entire material is available before the Court, which requires to be assessed by leading the evidence, under such circumstances, the power vested cannot be exercised. Even though the learned counsel would raise 33 several contentions, but it would be erroneous to assess the material which has been collected during investigation by the police. The case would be decided only after leading the evidence before the trial Court, but not at this stage. In that light, it cannot be held that there is no material against the petitioners-
accused. Thus, this Court at this stage cannot interfere with the disputed questions of facts and thus declined to exercise its inherent power conferred under Section 482 of Cr.P.C. Whether the said material is sufficient to take cognizance of the case or not is a matter which will be looked into by the Trial Court at the time of framing the charge. Even the petitioners have got remedy under Section 227 or 239 of Cr.P.C. to file an application for hearing before the charge, where under the trial Court can entertain such application and after going through the facts and circumstances of the case can pass appropriate order in accordance with law. This proposition of law has been also laid down by the 34 Hon'ble Apex Court in the case of Umesh Vs. State of Kerala reported in 2017 (3) SCC 112. When alternative remedy is there, then this Court cannot exercise power under Section 482 of Cr.P.C. If there is no material, definitely by exercising jurisdictional power vested with it the Court below can discharge. In the instant case on hand when charge sheet has already been filed and the Court below has taken cognizance, and in view of the dicta laid down by the Hon'ble Apex Court in the decisions quoted supra, this Court cannot exercise power under Section 482 of Cr.P.C.
Keeping in view of the above said principles of law and facts of the case, there is no material to quash the proceedings. Hence, the petition stands dismissed.
Sd/-
JUDGE BL