Kerala High Court
Mangattil Siddique And Anr. vs K.M. Abdul Latheef And Anr. on 11 August, 1988
Equivalent citations: 1989CRILJ533
ORDER M.M. Pareed Pillay, J.
1. This is a petition under Section 482 of the Criminal Procedure Code to quash the proceedings in C. C. 136 of 1987 before the Judicial Magistrate of First Class, Cochin. Petitioners are the accused in the above case. First respondent (complainant) alleged that the petitioners have committed offence punishable under Section 417 of the I.P.C. In the complaint it is alleged that the accused and Bava, a deceased son of the 1st accused had approached the complainant and his friend Mohammed Ashique and offered them Visa for going to Saudi Arabia, that the first accused and the second accused along with Bava had represented that the second accused is very well placed in Saudi Arabia and promised visa to the complainant, complainant's brother, his friend Ashique and his sister's son Rahim and obtained from the complainant a sum of Rs. 65.000/- on 28-8- 1983, that accused 1 and 2 promised to provide them covetable jobs and that believing the representation they parted money and it was later found that they were cheated. Contention of the petitioners is that really no offence has been made out in the petition or in the sworn statement and therefore the Court below erred in taking cognizance of the case. It is contended that the cognizance taken by the Court below is without jurisdiction and without application of mind to the materials relevant at the cognizant stage.
2. Annexure-A3 has been produced by the petitioners to show that the dispute between the parties is of a civil character and even on the basis of the complaint no offence under Sect ion 417 has been made out Reading of the complaint would show that the accused and Bava, a deceased son of the 1st accused had approached the complainant and others and offered them visa to go abroad and obtained from the complainant a sum of Rs 65,000/- and he parted the money believing the representation whereas it has been found later that it was only a fraudulent pretext in getting the money. The sworn statement of the complainant is in conformity with the complaint. The implications of the agreement propounded by the accused are yet to be considered at the trial stage. At this stage, it cannot be said that no offence has been made out under Section 417 of the I.P.C.
3. The power under Section 482 has to be exercised sparingly and not on mere assertions made by the parties. For invoking the inherent powers of the High Court the essential pre-requisites are the following:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved i party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code;
(4) The power can be exercised by the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure ends of justice.
High Court's inherent powers can definitely be exercised to prevent a proceeding being permitted to degenerate into a weapon of annoyance or harassment or persecution. If it is established prima facie that a party wants to continue criminal proceedings against another only with a view to harass him, the High Court can certainly quash the proceedings under Section 482 of Cr. P.C For the reason that the inherent power of the Court is undefined and indefinable, it should only be exercised ultra-cautiously and only under circumstances where exercise of such power is really called for. The tendency to invoke inherent powers of the High Court to quash criminal proceedings on flimsy grounds has to be deprecated. The power to be exercised under Section 482 is by its very nature extraordinary. It cannot be exercised capriciously or arbitrarily. This has to be exercised ex debito justitiae to do real and substantial justice to the parties. It is not at all proper for the High Court to interfere with the judicial exercise of discretion vested in the lower Courts.
4. Whether the complaint would not ultimately be established after trial is not a matter to be taken note of by the High Court under Section 482 of the Cr. P.C. Contention of the accused that the agreement produced in the case would clearly show that the dispute between the parties is of a civil nature as opposed to that of the petitioners that offence under Section 417 has been made out is a matter to be enquired into by the trial Court At this stage, it may not be possible for this Court to say one way or the other. At any rate, the complaint and the sworn statement do disclose ingredients of offence under Section 417 of the IPC. Hence, there is no justification to quash the criminal proceedings under Section 482 of the Cri PC.
5. The petition is dismissed.