Madhya Pradesh High Court
Dr. Neeraj Gupta vs The State Of Madhya Pradesh on 16 January, 2018
1
THE HIGH COURT OF MADHYA PRADESH
MCRC 10527/2016
[Dr. Neeraj Gupta and Ors. Vs. State of MP and Anr ]
Gwalior, dtd. 16/01/2018
Ku. Pragya Agrawal, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent No.1/ State.
Shri Prashant Sharma, counsel for the respondent No.2.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.110/2013 registered at Police Station Lahar, District Bhind for offence under Sections 498-A, 506, 34 of IPC as well as the charge sheet and further proceedings of Criminal Case No.1176/2013, pending in the Court of JMFC Lahar, District Bhind.
The necessary facts for the disposal of the present petition in short are that a written complaint was made by the respondent No.2 against the applicants, making allegations of harassment and ill-treatment for the demand of dowry and on the basis of said allegations, the police registered a FIR under Sections 498-A, 506, 34 of IPC at Mahila Police Station Padav, District Gwalior and it was transferred to Police Station Lahar, District Bhind.
It is submitted by the counsel for the applicants that the applicant No.2 is the sister-in-law (Nanand) and the applicant No.1 is husband of the applicant No.2. The applicant No.3 is the father-in-law, whereas the applicant No.4 is mother-in-law of the respondent No.2 and the applicant No.5 is the brother-in-law (Devar) of the respondent No.2. The respondent No.2 got married to co- accused Gaurav Lohiya on 20/11/2003. It was alleged that the applicants and other co-accused persons used to harass the respondent No.2 in connection with demand of dowry and she was turned out from her matrimonial house and she is residing with her son since October, 2008. The police 2 after conducting the investigation, filed a charge sheet for offence under Sections 498-A, 506 of IPC. The trial Court by order dated 06/11/2015 framed the charges under Sections 498-A, 506 Part II of IPC.
Being aggrieved by the order framing charges, the applicants filed a criminal revision before this Court which was registered as CRR No. 1155/2015. The said criminal revision was dismissed by this Court on 22/06/2016 and the order framing charges was affirmed. After dismissal of the revision by this Court, the applicants have filed the present petition under Section 482 of CrPC for quashment of the proceedings on the ground the the allegations do not prima facie make out an offence warranting the prosecution of the applicants.
It is submitted by the counsel for the applicants that since the applicants have filed certain documents to show that they are innocent and, therefore, they may be considered and on the basis of these documents, the criminal proceedings may be quashed.
Per contra, a preliminary objection has been raised by the counsel for the respondent No.2 that once the revision against the order framing charges by the trial Court, has been dismissed by this Court, then this petition under Section 482 of the CrPC cannot be entertained in view of Section 362 of CrPC.
Heard the counsel for the parties.
Before entering into the merits of the case, it would be appropriate for this Court to consider the fact that whether this Court after dismissal of the revision against the order framing charges, can entertain a petition for quashment of criminal proceedings after considering the certain documents which have been filed along with the petition to show their innocence. Whether the documents 3 which have been relied upon by the counsel for the applicants can be taken note of by this Court in the light of judgment passed by the Supreme Court in the case of State Of Orissa vs Debendra Nath Padhi, reported in AIR 2005 SC 359 or not, it would be apposite for the Court to consider whether this petition under Section 482 of CrPC would fall within the purview of review or not. The question for determination in this case with regard to maintainability of the petition under Section 482 of the CrPC is no more res integra. A similar situation had arisen in a case where after dismissal of the revision against the order framing charges the High Court had entertained a petition under Section 482 of the CrPC and quashed the entire proceedings. While considering the effect of Section 362 of the CrPC, the Supreme Court in the case of Sunita Jain vs. Pawan Kumar Jain and Others reported in (2008) 2 SCC 705 has held as under:-
"30. To us, the learned counsel for the appellant is right that in substance and in reality, the High Court has exercised power of review not conferred by the Code on a Criminal Court. Section 362 of of the Code does not empower a Criminal Court to alter its judgment. It reads thus:
362. Court not to alter judgment:- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
(emphasis supplied)
31. The section makes it clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has 4 no power to review, override, alter or interfere with it.
32. No doubt, the section starts with the words Save as otherwise provided by this Code. Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible.
33. It is also well settled that power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect. [Vide Patel Narshi Thakershi & Ors. v. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844] No power of review has been conferred by by the Code on a Criminal Court and it cannot review an order passed or judgment pronounced.
34. In Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169, this Court held that a High Court has no jurisdiction to alter or review its own judgment or order except to the extent of correcting any clerical or arithmetical error. It deprecated the practice of filing Criminal Miscellaneous Petitions after disposal of main matters and issuance of fresh directions in such petitions. The Court said; (SCC p. 175, para 10) ''10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error.
The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.'' ******** ******* 5
38. Even if we may not go to the extent that the High Court ventured to sit over the order passed by this Court in quashing the proceedings, in our considered opinion, on the facts and in the circumstances of the case, the High Court was not justified in invoking Section 482 of the Code and in quashing prosecution against the respondents.
39. Moreover, it is well-settled that inherent power under Section 482 of the Code must be exercised in rarest of rare cases. Before more than four decades in the leading case of R.P. Kapur v. State of Punjab, (1960) 3 SCR 388, this Court stated: (AIR p.869, para 6) ''6. ......It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases 6 under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where th ere is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. (emphasis supplied)''
40. Yet, in another important decision in State of Haryana v. Bhajan Lal, (1992) Supp 1 SCC 355, the Court referred to a number of leading decisions on the point and laid down the 7 following principles for exercising power of quashing criminal proceedings.( SCC pp.378-79, para 102) ''102. (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 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 8 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.''
41. Speaking for the Court, Pandian, J. stated:
(Bhajan Lal case SCC 379, para 103 ) ''103.........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.''
42. We are in respectful agreement with the above observations. On the facts and in the circumstances of the case, in our judgment, the High Court was clearly in error in exercising power under Section 482 of the Code and in quashing criminal proceedings. The said order, hence, deserves to be set aside. The matter will now be decided in accordance with law by an appropriate Court.'' Thus, this Court is of the considered opinion that after dismissal of the revision by this Court against the order framing charges, a petition under Section 482 of CrPC seeking quashment of proceedings, is not maintainable.
Accordingly, the petition is dismissed.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2018.01.21 12:52:57 +05'30'