Madhya Pradesh High Court
Aman Arora Jain vs The State Of Madhya Pradesh on 25 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 M.Cr.C. No.42996/2021
Aman Arora Jain Vs. Investigation Officer and others
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
M.Cr.C. No.42996/2021
.........Applicant: Aman Arora Jain
Versus
.......Respondents: Investigation Officer and others
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Applicant- Aman Arora Jain is present in person.
Shri Rajiv Upadhyay, learned counsel for the State.
Shri Vijay Jha, learned counsel for the respondent No.5.
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Date of hearing : 21/03/2022
Date of order : 25/03/2022
Whether approved for reporting:
ORDER
(25th/03/2022) This application under Section 482 of Cr.P.C. has been filed seeking quashment of FIR in Crime No.202/2021 registered at Police Station Inderganj, District Gwalior for offence under Sections 354-A, 509 and 294 of IPC.
2. It is not out of place to mention here that the charge-sheet has also been filed, however, no prayer has been made for quashment of the same.
3. Challenging the FIR lodged against the applicant, it is submitted by the applicant himself that the complainant has not disclosed her identity clearly. She is the daughter of Harish Chand Tiwari, whereas she has falsely shown herself to be the daughter of Mahesh Chand Tiwari, who is 2 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others her uncle. It is submitted that this has been done with a solitary intention that in case if the applicant is acquitted, then he may not prosecute the complainant for malicious prosecution.
4. It is next contended by the applicant himself that the complainant and her family members have encroached upon a Hanuman Temple and they are residing in the same and accordingly, the applicant has filed a Public Interest Litigation registered as Writ Petition No.19017/2020 and being aggrieved by the same, a false FIR has been lodged. It is further submitted that the complainant had earlier made a complaint to the police in the month of July, 2020 and in that complaint, she had levelled various allegations against the applicant including that he is in the habit of taking photographs of ladies and he is also a drug addict, but in the present FIR all those allegations have been omitted, which clearly shows the malafide. It is further submitted that the applicant has filed the affidavits of the neighbourers to show that the father's name of the complainant is Harish Chand Tiwari and her mother's name is Late Kusumlata and she is the niece of Mahesh Chand Tiwari and not the daughter of Mahesh Chand Tiwari. It is further submitted that the FIR has been lodged by way of counterblast and smacks of malafides because the applicant had made various complaints against the complainant and her family members are:-
a) Written complain against the (actual) complainants family said encroachment to the Executive Dist.
Magistrate (dated 17.03.20, 19/06/21), CM-Helpline Reg. Complain no.10510132 (dated 19.03.20) & complains to the Divisional Commissioner (dated 22/09/21, 09/10/21) (i.e. Before 13 months from the date of reg. of the F.I.R.) (See pg. 41-46)
b) Police complaints submitted by the accused 3 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others petitioner against complainants family i.e. to the S.H.O (dated 07.06.20; Pg.57), to the S.P (dated 09.06.20; Pg. 62), & to the D.I.G (dated 10.06.20; Pg. 58); Acting upon which, the police officials of P.S Inderganj & C.S.P Inderganj took actions & notified to the petitioner by issuing letters dated 04.07.20 & 11.07.2020 (vide Pg.56 & 59 resp.), stating of a bondover between both the parties to maintain peace u/s 107/116 CrPC; i.e. Before 9 months from the date of reg. of the F.I.R. & backed by a Newspaper-Dainik Bhasker' article dated 05.07.20 (See Pg. 55)
c) Public Interest Litigation no. WP 19017/2020 & filed by the accused petitioner directly against complainants family temenos encroachment (i.e. Before 5 months from the date of reg. of the F.I.R.); pending before the High Court of Gwalior (vide Pg. 47-52).
d) Complaint Petition to an Executive Dist. Magistrate with no.200/B 121/20-21 against the complainants Father (Harish Chand Sharma) & others dated 22/03/21, and Complain to a Judicial Magistrate of First Class (JMFC) having no. UNCR/ 7947 dated 24.03.2021 against the Complainants cousin family mate (Sagar); Notice of Sub Divisional Magistrate in the case no. 009/B 121/ 20-21, reg. dated 13.03.21, between the accused petitioner and the complainants father 'Harish'. i.e. ~3 Weeks before the date of reg. of the F.I.R (vide Annexure P3, Pg.54)
5. Thus, it is submitted by the applicant that his prosecution is unwarranted being the outcome of malafide as well as on account of suppression of her identity by the complainant.
6. Per contra, the application is vehemently opposed by the counsel for the State as well as respondent no.5. It is submitted by the counsel for the State as well as respondent no.5 that where the allegations made in the complaint make out a cognizable offence, then the police has to register the FIR. If the allegations made in the FIR are considered, then it is clear that they disclose commission of cognizable offence and 4 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others accordingly, nothing wrong was done by the police by registering the FIR. It is further submitted that during pendency of this application, the police has also filed the charge-sheet.
7. Heard learned counsel for the parties.
8. Before considering the submissions made by the counsel for the parties, this Court would like to consider the scope of interference under Sections 482 of Cr.P.C.
9. The Supreme Court in the case of Munshiram v. State of Rajasthan, reported in (2018) 5 SCC 678 has held as under :
10. Having heard the learned counsel for both the parties and perusing the material available on record we are of the opinion that the High Court has prematurely quashed the FIR without proper investigation being conducted by the police. Further, it is no more res integra that Section 482 CrPC has to be utilised cautiously while quashing the FIR. This Court in a catena of cases has quashed FIR only after it comes to a conclusion that continuing investigation in such cases would only amount to abuse of the process. .......
The Supreme Court in the case of Teeja Devi v. State of Rajasthan reported in (2014) 15 SCC 221 has held as under :
5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 CrPC should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of CrPC.
As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper and it can be done only in the rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious.
The Supreme Court in the case of State of Orissa v. Ujjal Kumar Burdhan, reported in (2012) 4 SCC 547 has held as under :
9. In State of W.B. v. Swapan Kumar Guha, emphasising that 5 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others 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: (SCC pp. 597-98, paras 65-66) "65. ... 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. ...
66. 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."
(emphasis supplied)
10. On a similar issue under consideration, in Jeffrey J.
Diermeier v. State of W.B., while explaining the scope and ambit of the inherent powers of the High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20) "20. ... The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised 6 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
The Supreme Court in the case of XYZ v. State of Gujarat reported in (2019) 10 SCC 337 has held as under :
14. Having heard the learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the writ petition, and by virtue of interim order granted by the High Court, further investigation was stalled.
Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsel have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings.
(Underline supplied) 7 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others The Supreme Court in the case of State of Tamil Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC 718 has held as under :
7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for.................
The Supreme Court in the case of S. Khushboo v. Kanniammal reported in (2010) 5 SCC 600 has held as under :
17. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana v. Bhajan Lal to take note of two such guidelines which are relevant for the present case:
(SCC pp. 378-79, para 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.
* * * (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."
18. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. this Court observed that a criminal complaint or a charge-sheet can only be quashed by superior courts in exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence.
19. Similarly, in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice.
8 M.Cr.C. No.42996/2021Aman Arora Jain Vs. Investigation Officer and others
20. In Shakson Belthissor v. State of Kerala this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed: (SCC pp. 478, para 25) "25. ... '16. ... One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.'*"
The Supreme Court in the case of Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC 336 has held as under :
8. In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this Court and then recorded his finding as to on what basis and reasons, a case is made out for any interference or not.
The Supreme Court in the case of Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :
27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case 9 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is 10 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
[Ref. State of W.B. v. Swapan Kumar Guha Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v. H.S. Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.; Shakson Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v. State of Rajasthan and S.M. Datta v. State of Gujarat.] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or 11 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.
28. At this stage, we may also notice that the principle stated by this Court in Madhavrao Jiwajirao Scindia was reconsidered and explained in two subsequent judgments of this Court in State of Bihar v. P.P. Sharma and M.N. Damani v. S.K. Sinha. In the subsequent judgment, the Court held that, that judgment did not declare a law of universal application and what was the principle relating to disputes involving cases of a predominantly civil nature with or without criminal intent.
The Supreme Court in the case of Ajay Kumar Das v. State of Jharkhand, reported in (2011) 12 SCC 319 has held as under :
12. The counsel appearing for the appellant also drew our attention to the same decision which is relied upon in the impugned judgment by the High Court i.e. State of Haryana v.
Bhajan Lal. In the said decision, this Court held that it may not be possible to lay down any specific guidelines or watertight compartment as to when the power under Section 482 CrPC could be or is to be exercised. This Court, however, gave an exhaustive list of various kinds of cases wherein such power could be exercised. In para 103 of the said judgment, this Court, however, hastened to add that as a note of caution it must be stated that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or in the complaint and that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
The Supreme Court in the case of Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350 has held as under :
5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies.
However an exception has been carved out by this Court in Yin Cheng Hsiung v. Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied 12 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.
The Supreme Court in the case of State of A.P. v. Gourishetty Mahesh reported in (2010) 11 SCC 226 has held as under :
18. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.
19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.
20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that 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 inherent powers under Section 482.
The Supreme Court in the case of Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437 has 13 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others held as under :
11. Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases. Section 482 is a sort of reminder to the High Courts that they are not merely courts of law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it.
These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.
12. In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly, when the matter has been concluded by concurrent finding of facts of the two courts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Code. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly, carefully and with caution.
13. It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S. Joshi v. State of Haryana). If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.
14. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal.
14 M.Cr.C. No.42996/2021Aman Arora Jain Vs. Investigation Officer and others (Vide Dhanalakshmi v. R. Prasanna Kumar; Ganesh Narayan Hegde v. S. Bangarappa and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque.)
15. It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court vide State of Haryana v. Bhajan Lal, Janata Dal v. H.S. Chowdhary, Rupan Deol Bajaj v. Kanwar Pal Singh Gill and Indian Oil Corpn. v. NEPC India Ltd.
16. In the landmark case of State of Haryana v. Bhajan Lal this Court considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. This Court summarised the legal position by laying down the following guidelines to be followed by the High Courts in exercise of their inherent powers to quash a criminal complaint:
(SCC pp. 378-79, para 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 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 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, 15 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others 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."
17. In Indian Oil Corpn. v. NEPC India Ltd. a petition under Section 482 was filed to quash two criminal complaints. The High Court by a common judgment allowed the petition and quashed both the complaints. The order was challenged in appeal to this Court. While deciding the appeal, this Court laid down the following principles:
(SCC p. 748, para 12)
1. The High Courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution.
2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence.
3. It was held that a given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.
18. In State of Orissa v. Saroj Kumar Sahoo it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC p. 550, para 11) "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."
19. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre this Court held as under: (SCC p. 695, para 7) 16 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
20. This Court, while reconsidering the judgment in Madhavrao Jiwajirao Scindia, has consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider "special facts", "special features" and quash the criminal proceedings to encourage genuine settlement of disputes between the parties.
21. The said judgment in Madhavrao case was reconsidered and explained by this Court in State of Bihar v. P.P. Sharma which reads as under: (SCC p. 271, para 70) "70. Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120-B IPC which the High Court refused to quash under Section
482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offence were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal. ... Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet."
17 M.Cr.C. No.42996/2021Aman Arora Jain Vs. Investigation Officer and others
22. Thus, the judgment in Madhavrao Jiwajirao Scindia does not lay down a law of universal application. Even as per the law laid down therein, the Court cannot examine the facts/evidence, etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of Madhavrao Jiwajirao Scindia is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes, etc. etc. The superior courts have been given inherent powers to prevent the abuse of the process of court; where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the Court to hold a full-fledged inquiry or to appreciate the evidence, collected by the investigating agency to find out whether the case would end in conviction or acquittal.
The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held as under :
17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings.
The Supreme Court in the case of M.N. Ojha v. Alok Kumar Srivastav reported in (2009) 9 SCC 682 has held as under :
30. Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out.
Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no 18 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.
31. It is well settled and needs no restatement that the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. [If such power is not conceded, it may even lead to injustice.]"
(See State of Karnataka v. L. Muniswamy, SCC p. 703, para 7.)
32. We are conscious that "inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases". (See Kurukshetra University v. State of Haryana, SCC p. 451, para 2.) The Supreme Court in the case of CBI v. Arvind Khanna reported in (2019) 10 SCC 686 has held as under :
17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.
18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.
9.1 Further, the Supreme Court in the case of State of MP Vs. Kunwar 19 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that a detailed and meticulous appreciation of evidence at the stage of 482 of CrPC is not permissible and should not be done. In the case of Kunwar Singh (supra), the Supreme Court held as under:-
"8.........At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to be an encyclopedia..........."
10. Thus, it is clear that this Court while exercising power under Section 482 of Cr.P.C. cannot consider the correctness of the allegations as well as the reliability and credibility of the witnesses. If the un- controverted allegations do not make out an offence, only then this Court can quash the proceedings.
11. In the present case, the allegations are that the applicant is in habit of staring at the complainant and giving indecent gestures and whenever it is objected by the complainant, then he starts abusing them. It is submitted that this allegation has been made falsely because the applicant has filed a public interest litigation against the father of the complainant.
However, shockingly the applicant did not disclose, on his own, that the public interest litigation (Writ Petition No.19017/2020), which was filed by him, has already been finally disposed of and when this Court asked certain questions with regard to the stage of PIL, only then it was submitted by the applicant that the PIL has already come to an end, but he submitted that he was not heard and has not been given the relief and 20 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others thus, he has filed SLP. The submission made by the applicant that he was not heard and was not given the relief in the PIL was contemptuous and realizing his mistake, he withdrew his submission that he was not heard and was not given the relief in the PIL.
12. Be that whatever it may.
13. It appears that the applicant had filed a PIL (Writ Petition No.19017/2020) seeking the following reliefs:-
**1- ;g fd izfr;kfpdkdkrkZx.k dks vknsf'kr fd;k tkos fd og f'kUns dh Nkouh dey flag dk ckx 'kkldh; Hkwfe loaaZs auEcj 483 ij fufeZr guqeku efUnj ds izkx.k dks vfrdze.kdkfj;ksa ds vfrdze.k ls eqDr djkos rFkk eafnj izkxa.k es fLFkr ihiy ,oa cjxn dk o`{k dk mfpr j[kj[kko dj vfrdze.kdkfj;ksa ls lqj{kk iznku djsA 2- ;g fd izfr;kfpdkdkrkZx.k dks vknsf'kr fd;k tkos fd og eafnj ifjlj esa okgu bR;kfn vojks/k gVokdj eafnj ds HkDrx.kksa dks vkus&tkus dks jkLrk eqgS;k djkos rFkk vfrdze.kdkfj;ksa ij n.MkRed dk;Zokgh djsA 3- ;g fd vU; vkns'k@funsZ'k ekuuh; U;k;ky; mfpr le>s U;k;fgr esa ikfjr fd, tkus dh d`ik djsaA**
14. The said writ petition was finally disposed of by a Division Bench of this Court by order dated 18/12/2020 with the following observations:-
The public cause raised in this petition as projected by the petitioner who appears in person is that there is a Hanuman Temple at Shinde Ki Chawni, Kamal Singh Ka Baagh Lashkar Gwalior which is alleged to be in existence since more than a century, situated at survey No.483 (nazul land). It is alleged that certain persons have encroached upon the temple by making unlawful construction and cutting of branches of peepal and banyan trees which stand there since long. It is also alleged that access to the temple is often blocked by parking of vehicles thereby obstructing accessibility to the persons visiting the temple.
The petition further reveals that a complaint made by the petitioner to the SDO on 22.08.2020, pursuant to which Revenue Inspector carried out inspection and submitted a report which inter alia reveals that the temple in question is in existence since 21 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others long. Report also reveals that certain branches of peepal tree have been cut and there is haphazard parking of vehicles around the temple causing obstruction to accessibility to the temple. The said report is filed alongwith Annexure P/3.
However, it is complained that no action pursuant to the said report was taken by the competent authority.
It is not known that as to whether the temple is private or a public temple.
However, this court would not like to go into the merits of the matter since it involves disputed questions of fact especially when the SDO/Tehsildar, Lashkar Gwalior are ceased of the matter.
This petition stands disposed of with direction to the SDO/Tehsildar Lashkar Gwalior to pass appropriate order pursuant to the report of Revenue Inspector vide P/3.
Petitioner is directed to approach the SDO/Tehsildar Lashkar Gwalior alognwith copy of this order which if done within a period of 30 days then the said Authority shall take appropriate suitable remedial steps in accordance with the report of Revenue Inspector submitted to the SDO/Tehsildar Lashkar Gwalior and submit compliance report to the Registry of this Court within 30 days from receipt of copy of this order.
Registry is directed to list this matter in "Directions" PUD in case no compliance report is filed or the compliance report filed is found to be amiss.
15. Although the applicant has not filed different order-sheets passed in the PIL, but after downloading the same from the website, when this Court asked about the stage of the proceedings pending before the SDO/Tahsildar, Lashkar, District Gwalior, then it was fairly conceded that those proceedings are still pending. Thereafter in the light of direction given by the Division Bench to list the said writ petition under the head "Directions", it appears that since no compliance report was filed, therefore, the said writ petition was listed under the "Directions" head and following order was passed on 16/7/2021:-
22 M.Cr.C. No.42996/2021Aman Arora Jain Vs. Investigation Officer and others This matter was finally disposed of on 18.12.2019 by passing direction i.e. petitioner approaches the SDO/Tehsildar Lashkar, Gwalior along with copy of the order passed then the same shall be considered and remedial steps in accordance with the report of Revenue Inspector would be taken and compliance in that regard would be filed in the Registry within 30 days from receipt of copy of this order.
Despite elapse of more than six to seven months no compliance report has been filed in the Registry, and therefore, this case has come up in "Directions" PUD.
Counsel for the State is directed to seek instructions with regard to the default on the part of SDO/Tehsildar Lashkar Gwalior in filing compliance report.
List on 23rd July, 2021.
16. Ultimately on 28/9/2021 the following order was passed:-
The petition was disposed of finally on 18.12.2020 and is presently listed for ensuring compliance of said order.
As regards the fact of encroachment over the temple in question which is on Aukaf Land (Government Land), there is serious dispute between the rival parties whether the alleged encroachment made by Pujari and his family members continues to exist or has been removed.
In view of above, to ascertain the truth, this Court appoints Shri Hitendra Dwivedi, OSD, High Court of M.P. Bench Gwalior to carry out surprise inspection at any time at his convenience and submit report with photographs to enable this Court to resolve the aforesaid controversy.
State counsel is also directed to submit relevant records showing exact area occupied by the temple since its inception and whether any order has been passed in respect of Pujari for occupation, the same be also produced.
A copy of this order be served on Shri Hitendra Dwivedi, OSD, High Court of M.P. Bench Gwalior and as well as Government Advocate for compliance.
List in the first week of November, 2021.
17. The applicant had also moved an application under Section 340 read with Section 195 of Cr.P.C., which was rejected with a cost of 23 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others Rs.5,000/- by order dated 8/11/2021. Thereafter, it appears that the OSD of the High Court placed the inspection report and in the light of the said report, the writ petition was finally disposed of by order dated 7/2/2022 with the following observations:-
In the light of inspection report dated 6/1/2022 of OSD, High Court of M.P., Bench Gwalior placed on record, nothing survives in this petition to address upon.
Consequently, the present Writ Petition stands disposed of.
18. It is submitted by the applicant himself that the OSD of this Court had given a finding that the complainant and her family members are in occupation of the said premises since long.
19. Be that whatever it may.
20. The first contention of the applicant is that the complainant has wrongly disclosed her father's name and instead of Harish Chand Tiwari, she has disclosed the name of her father as Mahesh Chand Tiwari and in case if the applicant is acquitted, then it would be very difficult for him to prosecute the complainant for malicious prosecution.
21. So far as the identity of the complainant is concerned, the applicant would get full opportunity to cross-examine her in the trial. He would get full opportunity to establish that the father's name of the complainant is Harish Chand Tiwari and not Mahesh Chand Tiwari. Thus, the apprehension expressed by the applicant that in absence of identity of the respondent no.2, he would not be able to prosecute her for his malicious prosecution, is frivolous and accordingly, it is rejected.
22. So far as the next contention of the applicant that since he had filed 24 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others a writ petition in the form of PIL against the father of the complainant, as they have encroached upon a temple, therefore, the FIR has been lodged with malafide intention and by way of counterblast is concerned, the same cannot be accepted. The Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar reported in (2008) 12 SCC 346 has held that if the complaint discloses commission of cognizable offence, then the malafide of the complainant looses its effect. In the case of Renu Kumari (supra) it has been held as under:-
"9. "8. Exercise of power under Section 482 CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under CrPC, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of 25 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
(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 their 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. (AIR p.
869)
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 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or 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 CrPC and the categories of cases where the High Court may exercise its 26 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others 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. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 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 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 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, 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.'
11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very 27 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others 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 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. [See Janata Dal v. H.S. Chowdhary and Raghubir Saran (Dr.) v. State of Bihar.] 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 the 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, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi) and Rajesh Bajaj v. State NCT of Delhi.]"
The above position was again reiterated in State of Karnataka v. M. Devendrappa, State of M.P. v. Awadh Kishore Gupta and State of Orissa v. Saroj Kumar Sahoo, SCC pp. 547-50, paras 8-
11.
23. Thus, if the allegations made in the FIR make out a cognizable offence, then the malafide of the informant becomes secondary.
Furthermore, a lot of disputed facts are involved in the present case, which cannot be decided by this Court while exercising powers under 28 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others Section 482 of Cr.P.C.
24. The next contention of the applicant is that the complainant had earlier made a complaint against the applicant to Superintendent of Police, Gwalior, in which it was alleged that the applicant is a drug addict and after consuming drugs, he takes photographs of the complainant as well as other ladies and girls residing in the house of the complainant and whenever he is requested not to do so, then he always extends threat. On one occasion, he had also attacked her brothers. It is submitted that now in the FIR, the allegations of consumption of drugs or taking photographs of the other ladies and girls residing in the house of the complainant have been omitted and now the FIR is confined only to the complainant herself, therefore, it is clear that the complainant has changed her version from place to place as per her convenience.
25. Considered the submissions made by the applicant.
26. It is well established principle of law that this Court while exercising its power under Section 482 of Cr.P.C. cannot decide the correctness of the allegations. However, the applicant himself has filed the photographs of the house of the complainant, in which even the ladies residing in the said house are also visible. Thus, the allegation which was made by the complainant at the earliest stage regarding taking of photographs of the ladies residing in the house appear to be correct.
27. Be that whatever it may.
28. If the respondent no.2/complainant has not included certain allegations which were the part of the previous complaint, then the 29 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others subsequent complaint cannot be quashed only on the said ground.
29. It is next contended by the applicant that earlier he had made certain complaints against the father of the complainant and, therefore, the present FIR has been lodged by way of counterblast.
30. It is once again clarified that this Court while exercising its power under Section 482 of Cr.P.C. cannot go to the extent of deciding as to whether the FIR in question is a counterblast to any previous complaint made by the suspected accused or not. Furthermore, it is clear that the complainant as well as the applicant were making allegations as well as counter allegations against each other and even the complainant had given a complaint to the Superintendent of Police, Gwalior in the month of July, 2021, which has been placed at page no.27 of the application.
Similarly, from letter dated 6/3/2021 which has been placed at page no.
26 of the application, it is clear that the complainant had also made a complaint to the District Project Officer, Women and Child Welfare Department, Gwalior and the said complaint was forwarded by the District Project Officer, Women and Child Welfare Department, Gwalior to the SHO, Police Station Inderganj, Lashkar, District Gwalior by its letter dated 6/3/2021. According to the applicant himself, the OSD of this Court has given a finding that Harish Chand Tiwari is residing in the said house for the last several years. Accordingly, it is clear that it is a case which basically involves the question of civil rights of the litigants, which is a highly disputed question of facts and furthermore, the PIL filed by the applicant has already been dismissed in the light of the report 30 M.Cr.C. No.42996/2021 Aman Arora Jain Vs. Investigation Officer and others submitted by the OSD of this Court and thus, this Court cannot hold that the FIR in question has been lodged with malafide intention or by way of counterblast.
31. At this stage, it is submitted by the applicant-Aman Arora Jain that if a person is required to face the prosecution because of filing a PIL against the encroachment, then nobody would come forward.
32. This argument advanced by the applicant has no sanctity in the eyes of law, because the cases are never decided on the basis of emotions, but they are always decided on the basis of the law of the land.
33. As the applicant has failed to make out a prima facie case for quashment of the FIR in question, accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.03.25 15:15:34 +05'30'