Gujarat High Court
Harish Dhirajlal Upadhyay vs State Of Gujarat & on 29 July, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
HARISH DHIRAJLAL UPADHYAYV/SSTATE OF GUJARAT R/CR.MA/4312/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 4312 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.M.THAKER =========================================================== 01. Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 02. To be referred to the Reporter or not ? Yes except para 23 03. Whether their Lordships wish to see the fair copy of the judgment ? No 04. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 05. Whether it is to be circulated to the civil judge ? No =========================================================== HARISH DHIRAJLAL UPADHYAY & 2....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR PM THAKKAR, SENIOR COUNSEL WITH MR KB PUJARA, ADVOCATE for the Applicant(s) No. 1 - 3 MR PJ MEHTA, ADVOCATE for the Respondent(s) No. 2 MR KP RAVAL, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 29/07/2013 ORAL JUDGMENT
1. In present petition, the three petitioners have prayed, inter alia, that:
9(a) To quash and set aside the impugned FIR vide I-CR No.46/09 dated 16.3.2009 of Shahpur Police Station for the offences under sections 379, 511, 294(b), 506(1) and 114 of IPC and section 135(1) of the Bombay Police Act as per Annexure-A;
(b) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay further investigation and other proceedings pursuant to the impugned FIR vide I CR No.46/09 dated 16.3.2009 of Shahpur Police Station for the offences under sections 379, 511, 294(b), 506(1) and 114 of IPC and section 135(1) of the Bombay Police Act as per Annexure-A;
2. At the outset, it is relevant to mention that an incident occurred on 16.3.2009. In connection with the very same incident dated 16.3.2009, two complaints/FIRs came to be filed. One of the two sides in the said incident (i.e. present respondent) filed complaint/FIR on the same date, i.e. 16.3.2009 which came to be registered as I CR No.46/2009, whereas the second complaint came to be lodged more than three days after the date of incident. The said second FIR came to be lodged on 20.3.2009 and was registered as II CR No.3024/2009.
2.1 The said second FIR was lodged by another officer of the company and not by the persons concerned in / with the incident.
2.2 It is pertinent that the said second complaint No.3024/2009 has, after investigation, culminated into charge-sheet and criminal case which is pending in the Court.
2.3 This petition is filed against the aforesaid first complaint / FIR dated 16.3.2009 which is registered as I CR No.46/2009.
3. So as to consider and appreciate the relief prayed for by the petitioners in present petition, it is necessary to take into account the allegations in cross complaints and the events leading to presentation of this petition under Section 482 of the Code of Criminal Procedure, 1973.
3.1 It has emerged from the record and from the submissions by the learned advocates for the petitioners and the respondent that the incident in connection with which the two FIRs came to be lodged and present petition is taken out, allegedly occurred on 16.3.2009.
3.2 In connection with the incident which allegedly occurred on 16.3.2009, present respondent filed a complaint before Shahpur Police Station on the same day, i.e. on date of the incident (on 16.3.2009) and the said FIR/complaint came to be registered as I CR No.46/2009. According to the said FIR (filed by the respondent), the incident occurred at around 11.00 a.m. on 16.3.2009 and the complaint came to be lodged at around 1.10 p.m. on the same day, i.e. on 16.3.2009.
3.3 Whereas, on behalf of the present petitioners (who are the persons involved in and concerned with the said incident dated 16.3.2009), another person/officer of the company (wherein the three petitioners are employed) filed the complaint, in connection with the very same incident dated 16.3.2009 (after delay of more than three days) on 20.3.2009 at around 7.25 p.m. which came to be registered as II CR No.3024/2009.
3.4 Thus, in connection with the said other / second FIR dated 20.3.2009 not only there is gap of about three days between the date of incident, i.e. 16.3.2009 and dated 20.3.2013 of FIR, but another relevant aspect is also involved, viz. that the complaint came to be filed not by the persons concerned in the incident, i.e. the three petitioners, but by some other person, i.e. another officer of the company, wherein the persons concerned in the incident are employed.
3.5 So far as the complaint filed by present respondent is concerned (which, as aforesaid, came to be filed on the same date, i.e. on 16.3.2009 when the incident allegedly occurred) the complainant has alleged offence under Sections 379, 511, 294(b), 506(1) and 114 of IPC and section 135(1) of the Bombay Police Act. Whereas in the complaint which came to be subsequently filed on 20.3.2009 on behalf of the petitioners, i.e. the persons allegedly involved in the incident, the complainant has alleged offence under Sections 323, 294(b) and 506(1) of IPC.
3.6 Thus, the incident in connection with which the two sides have initiated criminal proceedings is the same, but the versions of two sides are different.
3.7 The petitioners herein, i.e. the persons involved in the incident in question, are employees who are employed as Technicians in a limited company which is engaged in generation, transmission and supply of electricity, whereas respondent No.2 herein is an employee in one of the textile mills in the city and he is one of the residents as well as Secretary of the housing society, wherein the alleged incident occurred. The petitioners have alleged that the respondent is connected with the political party and he has filed false complaint against the petitioners.
3.8 The first FIR, i.e. I CR No.46/2009 is filed by present respondent who has alleged, inter alia, that on 16.3.2009 while he was going to his office he said three persons (i.e. the petitioners) working at / near the electric installations of the apartments in the society. He also alleged that in his capacity as Secretary of the housing society, he had received various complaints from the residents that employees of the electric company visit the society frequently and on pretext of checking the installations, they tamper with the meters and steal parts like fuse. The respondent alleged in the complaint that when he saw the three persons working at the electric installation and observed them working he gathered impression that they were trying to commit theft of fuse so he started questioning them when the three persons got angry and wild with him and abused him in filthy language and also threatened him with serious consequences if he interfered with them or with their work and that one of them also carried a sharp weapon with which they threatened him and then they left the society. The said complaint is registered as I CR No.46/2009 and present petition is preferred with request to quash the said complaint.
3.9 The investigation in connection with this complaint is stayed since December, 2009.
3.10 On the other hand, in the second complaint which came to be filed on 20.3.2009, i.e. three days after the alleged incident and came to be registered as II CR No.3024/2009, it is alleged that on 16.3.2009 three employees were visiting different locations which are situate within the supply area of the electricity company and they were checking the installations. The said complaint was not lodged by the said three employees but other officer of the company. It is also alleged in the FIR/complaint dated 20.3.2009 that on 16.3.2009, during routine visit, they had also gone to a housing society, viz. Borsali Apartment where they were checking the installations, i.e. electric meters and the fuse, etc. and while they were inspecting the said installations, the respondent of present petition, i.e. complainant in the FIR dated 16.3.2009 approached them and started abusing them and alleged that they were tampering with the meters and/or committing theft of fuse, etc. and the respondent also committed assault and that, therefore, they left their work incomplete and went out of the society and after reaching the company's office, they reported the incident to their superior. It is further claimed that subsequently (i.e. three days after the incident) on 20.3.2009, the security officer lodged the FIR on behalf of said three persons which came to be registered as II CR No.3024/2009. The said FIR No.3024/2009 has, after investigation, culminated in charge-sheet and in criminal case which is pending in the Court.
3.11 The present petitioners, i.e. the said three employees of the company have taken out present petition with a request that the complaint/FIR filed by the respondent, i.e. the complaint registered as I CR No.46/2009 dated 16.3.2013 may be quashed.
4. Before proceeding further, it is pertinent to note that on earlier occasion, present respondent had preferred application being Criminal Misc. Application No.6576 of 2009 with similar request, i.e. with a request that the complaint filed by the security officer of the company, i.e. II CR No.3024/2009 dated 20.3.2009 may be quashed. It appears that the said petition came to be dismissed by the Court vide order dated 10.11.2009 (which was preferred by the present respondent against the complaint filed by the security officer of the company), which reads thus:
Heard learned Advocate Mr.Mehta for the applicant.
Learned advocate for the applicant states that CR No.3024/2009 dated 20.03.2009, a copy of which is produced at Annexure-B, is not legible to him and therefore, he has produced a typed copy at page No.23.
On reading of the same, it does not make out any sense. Hence, the application is dismissed for want of necessary document.
4.1 It also appears that subsequently, the present respondent preferred application seeking review of the said order dated 10.9.2009 in Criminal Misc. Application No.6576 of 2009. The Court rejected the said application vide order dated 10.11.2009. The relevant part of the order dated 4.12.2009 reads thus:
1.
The present application is filed for restoration of Criminal Misc.application No.6576 of 2009, which was dismissed for want of necessary documents by order dated 10.11.2009.
The prayer made in this application reads as under:-
5. & & & & &
2. The Court has passed the order on 10.11.2009 recording that:-
& & & & & Once the order as aforesaid is passed, this Court becomes functus officio and the remedy lies to approach the higher forum and not the filing of a restoration application.
3. Despite that, the learned advocate for the applicant insisted that the submissions made by him be considered. The first submission is that, 'the document which is held to be of not making out any sense and the application is dismissed for want of necessary document is the basis of filing of cross complaint also', which is challenged in Criminal Misc. Application No.4312 of 2009.
Even if it is so, the order passed by this Court be pressed into service, when that Criminal Misc. Application No.4312 of 2009 is heard.
5. The learned advocate for the applicant next submitted that, 'there is no provision in Code of Criminal Procedure, 1973 to dismiss a matter on the ground that the document is not making out any sense and that the application is dismissed for want of necessary document'.
The submission is devoid of any merit. In the main matter, at Annexure-A, xerox copy of the complaint is produced and thereafter, a typed copy of the said document is produced. In absence of making out sense from that document, it is not possible for the Court to ascertain the actual challenge in the application and hence, the aforesaid order was passed.
6. Learned advocate for the applicant next submitted that, 'the offence is alleged to have taken place on 16.03.2009 and on that day, the present applicant, i.e. Rajesh Pravinbhai Brahmbhatt filed a complaint. The said complaint was filed against 3 persons, whose names are set out in the complaint and the complainant of the complaint filed on 20.03.2009, i.e. Devashish Manigopal Pal was not present on the scene of occurrence and still, he has filed the complaint on 20.03.2009 as a counter blast to the complaint filed by the applicant on 16.03.2009. He submitted that this is required to be taken into consideration.
This submission cannot be taken into consideration in the restoration application.
7. With the aforesaid observations, the application is dismissed.
4.2 It appears that feeling aggrieved by having regard to the said order dated 4.12.2009, the Respondent herein preferred appeal before the Hon'ble Division Bench which came to be registered as Letters Patent Appeal No.2464 of 2009. The said appeal came to be disposed of by order dated 24.12.2009 by the Hon'ble Division Bench on the ground that the Letters Patent Appeal under Clause 15 would not be maintainable in matters where the Court has exercised criminal jurisdiction. Since, in the said order, the Hon'ble Division Bench had observed that it would be open to the appellant, i.e. present respondent to take out appropriate proceedings, the respondent herein preferred Special Criminal Application No.199 of 2010 which also came to be rejected by the Court vide order dated 16.6.2010 on the ground that the petition seeking similar relief cannot be entertained. The relevant part of the said order dated 16.6.2010 reads thus:
Admittedly, for the same subject matter Criminal Misc. Application No.6576 of 2009 filed by the petitioner was rejected by this Court (Coram :
Hon'ble Mr. Justice Ravi R. Tripathi) vide order dated 10.11.2009. Thereafter, review application being Criminal Misc. Application No.13114 of 2009 preferred by the petitioner was also rejected by the learned Single Judge vide order dated 04.12.2009. Against the said order, the petitioner filed Letters Patent Appeal No.2464 of 2009, which was also rejected by the Division Bench of this Court on 24.11.2009 keeping it open for the appellant to approach the appropriate forum.
... ... ...
4. Considering the order of the Division Bench and the order passed by the learned Single Judge while exercising powers under Section 482 of the Code, I am of the opinion that the petitioner is not entitled for the prayer made in this petition in exercise of jurisdiction under Article 226 of the Constitution of India.
5. That the concept of equality before law under Article 14 of the Constitution cannot be extended for reviewing the order passed by learned Single Judge exercising powers under Section 482 of the Code for the same subject matter. The contention based on principles of Wednesbury Reasonableness is misconceived.
4.3 Thus, the request made by the present petitioners to quash and set aside the complaint filed by the security officer of the company is not entertained and has met with order of rejection for the above-mentioned reasons. The respondent would contend that his application to quash FIR against him is not decided on merits but is rejected on technical ground. However, that is not the issue or case before this Court.
5. Consequently, the complaint filed by the security officer of the company (in connection with the same incident which allegedly occurred on 16.3.2009) subsists and has culminated in charge-sheet and criminal case which is pending before the learned trial Court pursuant to the charge-sheet filed by the investigation officer.
5.1 On the other hand, the petitioners herein, i.e. three officers who are allegedly involved in the incident in question (i.e. the concerned officers) have taken out present petition with a request that the complaint filed by the present respondent (in connection with the same incident, for which criminal case is pending) may be quashed.
6. At this stage, it is pertinent to note that though according to the allegations in both the complaints, three employees of the company (i.e. present petitioners) are allegedly involved in the incident in question. However, the complaint against the respondent was not filed by the petitioners but the said complaint came to be filed by the security officer of the company and now present petition is not filed by the security officer (who lodged the FIR), but it is filed by three employees allegedly involved in the incident in question. The petitioners and the electricity company would justify present petition on the ground that the criminal law can be put in motion by any one and therefore, there is nothing wrong in the action of the electricity company whereby the security officer of the company filed the complaint and put the criminal machinery in motion and similarly, there is nothing wrong in the concerned persons taking out a petition under Section 482 of the Code and praying that the complaint filed by the respondent may be quashed because the petitioners are persons concerned in the said company.
7. True it is, but, the said aspect is to be considered in light of the facts of the case and also the fact that the petitioners are not illiterate persons and any reason for petitioners themselves not filing the complaint is not put forward and the delay after which the complaint came to be filed, is also not satisfactorily explained.
8. Mr.Thakkar, learned senior advocate has appeared with Mr.Pujara, learned advocate for the petitioners, whereas Mr.Mehta, learned advocate has appeared for the respondent, i.e. complainant which is registered as I CR No.46/2009 against which the present petition is taken out.
8.1 Mr.Thakkar, learned senior advocate for the petitioners submitted that the allegations in the impugned complaint/FIR are completely improbable. It is claimed that any employee of electricity company cannot be involved in theft of company's property, installed in the housing society. According to learned senior advocate for the complainant, the allegations made by the respondent in his complaint are completely impossible and improbable to believe and therefore, the complaint deserves to be quashed and set aside. The other ground on which the petitioners have taken out present petition, is that the complaint amounts to abuse of process of law and therefore also the complaint deserves to be quashed and set aside. The third and last ground urged by the learned advocate for the petitioners is that the allegations made by the respondent do not inspire confidence. These are the grounds urged by the learned senior counsel for the petitioners.
8.2 Mr.Thakkar, learned senior advocate for the petitioners relied on the decision in the case of State of Haryana vs. Ch. Bhajan Lal [AIR 1992 SC 604]. Learned senior advocate for the petitioners submitted that the impugned FIR falls under sub-para 5 of para 108 of said decision and is accordingly covered under one of several by the different kinds of cases mentioned in said decision. Hence, the Court would exercise the jurisdiction under Section 482 of the Code.
9. Per contra, learned advocate for the respondent has opposed the submissions and contended that the complaint filed by the respondent is prior in point of time, whereas the complaint filed by the security officer of the company on behalf of the concerned employees is a subsequent complaint which came to be filed about three days after the date of incident. This, according to the respondent, means that the complaint filed by security officer is an afterthought and counter-blast. Learned advocate for the respondent also contended that the petitioners are not justified in claiming that his complaint is abuse of process, whereas the complaint filed on their behalf is not abuse of process of law, but it deserves to be prosecuted on merits. It is also contended by the learned advocate for the respondent that whether the allegations made by the complainant are incorrect or improbable or not would become clear after investigation and there is no justification in terminating the FIR/complaint filed by him, i.e. the respondent even without investigation of the complaint made by him. The learned counsel for the respondent submitted that any case to thwart the investigation at initial stage is not made out.
10. I have heard learned advocates for the petitioners and the respondent at length and have also considered the material available on record, including two complaint.
11. It has emerged from the record that in connection with the same incident which allegedly occurred on 16.3.2009, cross complaints have been filed. The complaint which came to be filed and registered first in point of time as I CR No.46/2009, is filed by the present respondent the same day, i.e. on 16.3.2009, whereas the cross complaint which came to be filed on behalf of the petitioners (i.e. three days after the incident), is registered as II CR No.3024/2009.
11.1 The investigation in the said second complaint is over and it has culminated in charge-sheet and criminal case is pending in the trial Court.
11.2 Whereas, in case of FIR No.46/2009 which was filed and registered first in point of time, even investigation has not started and any investigation about respondent's side of story and his allegation is not made (in view of Court's interim order in this petition) and the investigation about respondent's allegation is yet to be started and carried out.
11.3 The petition preferred by the respondent seeking order that the complaint filed by the security officer of the electricity company may be quashed, is not entertained by the Court and has been rejected vide order dated 10.11.2009 and thereafter, as mentioned earlier, upon conclusion of investigation process, the said FIR has culminated into charge-sheet and the criminal case is presently pending before the learned trial Court.
11.4 Now in this petition, the concerned officers (i.e. accused persons allegedly involved in the incident in question) want that even investigation in connection with respondent's complaint may not be allowed to be commenced and completed and his allegation or his side of story may not be allowed to be investigated and that FIR may be thwarted and the complaint may be dismissed at its threshold.
12. In this context, it is relevant to mention that so far as the respondent's FIR, i.e. the FIR impugned in this petition is concerned, the facts are hazy and they are yet not investigated.
13. Thus, the investigation result/report as regards the respondent's side of story and his allegation is not available to the Court.
13.1 Besides this, the Court cannot ignore that when cross complaints are filedm investigation of both complaints would bring complete picture before the Court and not a truncated version and therefore, ordinarily, it would not be in fitness of things to nip the investigation in its bud/at its threshold.
13.2 When the cross complaint, which is subsequently filed by security officer of the company (and not by the employees themselves) in connection with the same incident, has culminated in the charge-sheet and in criminal case which is pending before the learned trial Court, it would not be justified for the Court to quash the respondent's complaint without even investigation.
14. Furthermore, if on completion of investigation, the investigation officer finds no substance in the allegations by the respondent and if the investigation officer finds that there is no substance in the complaint, then the investigation officer will file appropriate report or summary, e.g. 'C' Summary.
15. However, having regard to the fact that the charge-sheet has been filed in connection with the same incident, though with reference to another FIR, i.e. the FIR which the FIR came to be filed on behalf of the present petitioners and culminated in charge-sheet and case is pending pursuant to the charge-sheet, it would not be just and proper for the Court to not even allow the investigation more so when it is allowed in cross complaint and it would not be just and proper for the Court to reach to and pronounce a conclusion about complainant's (i.e. present respondent in this case) FIR and that too without complete material which may become available only after investigation.
16. So as to appreciate the submissions by learned senior advocate for the petitioners, it is necessary to take into account the observations by the Hon'ble Apex Court in the case of State of Andhra Pradesh vs. Goloconda Linga Swamy and another [AIR 2004 SC 3967], wherein the Hon'ble Apex Court observed in paragraph No.8 that:
8.
As noted above the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint / F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide , frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.
16.1 It is also relevant to mention that the Hon'ble Apex Court has always put a word of caution with regard to interference in the process of investigation. In this context, reference may be made to the observations by the Hon'ble Apex Court in paragraph No.30 of the decision in the case of Sanapareddy Maheedhar Seshagiri & anr vs. State of Andra Pradesh and anr. (AIR 2008 SC 787), which reads thus:
30. A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the FIR or complaint or restraining the competent authority from investigating the allegations contained in the FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint.
Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C.
16.2 Likewise, on the decision in the case of State of Bihar v. Murad Ali Khan & Ors. [(1988) 4 SCC 655], the Hon'ble Apex Court has observed that:
15. It is trite jurisdiction under Section 482 CrPC, which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon and enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not.
16. In Municipal Corporation of Delhi v. R.K. Rohtagi, it is reiterated: [SCC p.6:
SCC (Cri) p.120, para 10] It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.
17. In Municipal Corporation of Delhi v. P.D. Jhunjunwala, it was further made clear: [SCC p.10: SCC (Cri) p.124, para 5] As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.
16.3 Similarly, on the decision in the case of Dr.Monika Kumar and Anr. v. State of U.P. And Ors. [AIR 2008 SC 2781], the Honble Apex Court has observed that:
30. We may reiterate and emphasise that the powers possessed by the High Court under Section 482 Cr.P.C. Are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.
Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage. [See Janata Dal v.H.S. Chowdhury (1992) 4 SCC 305; Raghubir Saran Dr. v.State of Bihar 1964 (2) SCR 336; Kurukshetra University v. State of Haryana (1977) 4 SCC 451; and Zhandu Pharmaceuticals Works Limited and Others v.Mohd. Sharaful Haque and Another 2005 (1) SCC 122].
31. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and offence has been committed which will have to be established in a court of law, it is of no significance that the complainant is a person who is inimical or that he is guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the proceedings. [See State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542; Zhandu Pharmaceuticals Works Limited and Others v. Mohd. Sharaful Haque and Another 2005 (1) SCC 122; State of Bihar & Anr. v. J.A.C. Saldanah (1980) 1 SCC 544; State of Orissa v. Saroj Kumar Sahoo 2005 (13) SCC 540]. There may be some exceptions to the said rule but we are not concerned with such a case.
16.4 On the decision in the case of State of Orissa and Ors. v. Ujjal Kumar Burdhan [2012 (1) GLH 875], the Hon'ble Apex Court has observed that:
7. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extra-ordinary power has to be exercised sparingly with circumspection and as far as possible, for extra-ordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those incharge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.
8. In State of West Bengal and Ors. Vs. Swapan Kumar Guha and Ors.(1982) 1 SCC 561: 1982 SCC (Cri) 283, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus:-
An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed....Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case.... If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence.
16.5 It will also be appropriate to take into consideration the observations by the Hon'ble Apex Court in the decision in case between State of Orissa vs. Sarojkumar Sahoo [(2005) 13 SCC 540] wherein, Hon'ble Apex Court observed that:
11.
... ... ... It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar, [1990] Supp SCC 686, State of Bihar v. P. P. Sharma, AIR (1996) SC 309, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, [1995] 6 SCC 194, State of Kerala v. O.C. Kuttan, AIR (1999) SC 1044, State of U.P. v. O.P. Sharma, [1996] 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, [1997] 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi, AIR (1996) SC 2983 and Rajesh Bajaj v. State NCT of Delhil, [1999] 3 SCC 259).
16.6 In the decision in case between Inder Mohan Goswami & Anr. v. State of Uttranchal & Ors. [AIR 2008 Supreme Court 251], The Hon'ble Apex Court has observed that:
27.
The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; moreso, when the evidence has been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
17. So far as petitioner's contention about improbability about respondent's allegations is concerned, the incidents/cases, wherein employees of any company maybe allegedly involved in theft of company's property, are not wanting. There would be cases and cases where the employees of several companies, wherein employees are visited with the allegations / show cause notices for having committed of theft of company's property and there would be cases where departmental actions are taken against such employees for such acts or other proceedings in the Court might have been taken out against such employees for such acts.
17.1 Therefore, at the threshold of the investigation an even before the investigation is completed, it would be too early for the Court to assume that the allegations made by the respondent are absolutely improbable, concocted, incorrect and wholly unjustified and to record such conclusion (without benefit of any material since investigation is yet not carried out) and on the basis of such conclusion to quash the FIR at its threshold.
17.2 Thus, in view of the facts of present case the decision in case of State of Haryana (supra) on which learned senior counsel for the petitioners relied, will not help the petitioners.
17.3 The Court has also noted that the respondent has, in his complaint, alleged that the petitioners, i.e. concerned employees of the electricity company had threatened him and that almost three days after he filed the complaint, the security officer of the electricity company filed complaint which has, after investigation, culminated into charge-sheet.
17.4 Thus, the factum about the incident in question, which is mentioned in both the complaints, is, therefore, not in dispute and that, therefore, the issue which arise is that who played what role in the alleged incident and to what extent.
17.5 The said aspects are still hazy so far as the respondent's complaint is concerned and therefore, the investigation is necessary and it would not be proper to stifle the investigation.
18. At this stage, it is relevant and appropriate to refer to the observations by the Hon'ble Apex Court in recent decision in case between Rajiv Thapar vs. Madan Lal Kapoor [(2013) 3 SCC 330]. In the said decision, the Hon'ble Apex Court has also explained ht steps and stages at which and the manner in which the powers under Section 482 of the Code should be and should not be exercised. The Hon'ble Apex Court has observed that:
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges.
These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution / complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiable refuted, being material of sterling impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1 Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2 Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3 Step three: whether the material relied upon by the accused has not been refuted by the prosecution / complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution / complainant?
30.4 Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
19. In present case, the foregoing discussion brings out that at present the material available on record before the Court is not such which can be treated as 'material of sterling and impeccable quality' is sufficient to materially or that the material is 'sufficient to rejected overrule the factual assertions contained in the complaint'. Actually, as of now even the material concluded by the investigation officer in light of which he filed charge-sheet, is also not available on record and so far as the impugned complaint is concerned, any investigation has not even started and therefore, except the assertions made by the complainant respondent in his FIR, any other thing is not before the Court and that, therefore, in considered view of the Court, it would be premature to pronounce the conclusion based on such hazy facts that the complaint does not deserve to be investigated and/or that it amounts to abuse of process of law.
20. It is also relevant to note that after investigation, the investigation officer finds that there is no substance in the allegation made by the respondent and the investigation officer may file appropriate report/summary, i.e. 'C' Summary or 'B' Summary, then the further proceedings would come to an end so far as respondent's complaint is concerned. However, quashing of complaint at this stage without allowing any investigation of any nature to be conducted with reference to the allegation made by the respondent in connection with the same incident (for which one charge-sheet is already filed in respect of the cross complaint filed by the security officer of the electricity company) would not be justified and proper to quash the FIR at this stage without permitting the investigation officer to continue investigation and file an appropriate report.
21. Therefore, having regard to the facts and circumstances of the case and above discussed aspects and for the foregoing reasons, the Court is not inclined to accept present petition and to quash the complaint at its threshold.
22. Therefore, the petition is rejected.
23. At this stage, learned advocate for the petitioners has prayed that interim relief, which has remained in operation until now, may be continued for some more time so as to enable the petitioners to take out appropriate proceedings before the Apex Court. In view of the said request, it is directed that the interim relief, which has remained in operation until now, shall continue till 31.8.2013.
(K.M.THAKER, J.) Bharat Page 28 of 28