Allahabad High Court
Mayank Agrawal And Another vs State Of U.P. And Another on 2 December, 2021
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A. F. R. Court No. - 58 Case :- APPLICATION U/S 482 No. - 1081 of 2007 Applicant :- Mayank Agrawal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Seema Agrawal,Saroj Giri Counsel for Opposite Party :- Govt. Advocate Hon'ble Ashutosh Srivastava,J.
Heard the learned counsel for the applicants and the learned AGA for the State. No one has appeared on behalf of the opposite party no. 2.
The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the entire proceedings of Complaint Case No. 32253 of 2005 (Gopal versus Mahesh Chandra Agarwal and another) under Section 379 IPC, pending before the Chief Judicial Magistrate, Allahabad.
The aforesaid complaint case was registered pursuant to the order of the Chief Judicial Magistrate, Allahabad vide order dated 5.12.2005 (Annexure-5 to the affidavit filed in support of the application under Section 482 Cr.P.C.). The opposite party No. 2 Gopal son of late Ram Jani on 29.11.2005 filed an application under Section 156 (3) Cr.P.C. impleading the applicants and alleging inter alia that he is employed as a "Bandi Rakshak" in Pratapgarh District Jail and his permanent address is 13/15 Clive Road, Allahabad. He has been residing at their address since his childhood and has undergone schooling from the said address. The Bungalow No. 13/15 Clive Road, Civil Lines, Allahabad belonged to an Englishman W.H. Tuck and his father and mother late Ram Jani and late Shanti Devi worked for him and resided in a quarter of the bungalow. One Ravi Kumar, nephew, who was a student of Allahabad University also used to reside with them. The application under Section 156 (3) Cr.P.C. further stated that he was employed at Pratapgarh District Jail, but used to visit Allahabad on holidays and reside in the quarter along with his family. A lot of household goods were kept in the quarter at Allahabad. On 20.10.2005 the nephew of the opposite party no. 2 was residing alone in the quarter and he locked the quarter and went to attend to his friend who was hospitalized and returned in the morning of 21.10.2005 at 7:00 AM only to find that the lock had been broken and his neighbours informed him that the applicants who were the owners of the bungalow had broken the lock and carried away all the household articles of the opposite party no. 2 and put their lock. A police report was tried to be lodged by the nephew, but the same was not registered whereafter information was sent by registered post to the police authorities, but the same also did not bear any fruits. Help was also sought from the Akhil Bhartiya Sri Balmiki Navyuvak Sangh which also did not bear any fruits and meanwhile the applicants demolished three rooms of the quarter. After not receiving any response from the authorities, the opposite party no. 2 is constrained to approach the Chief Judicial Magistrate, Allahabad by preferring the application under Section 156 (3) Cr.P.C.
The application under Section 156 (3) Cr.P.C. was taken up by the learned Chief Judicial Magistrate on 5.12.2005 and after recording the absence of the opposite party no. 2 opined that it was not a fit case to direct the police to register a case and investigate, but directed the case to proceed as a complaint case and fixed a date for recording of the statements of complainant (opposite party no. 2). Thereafter the statements of the complainant (opposite party no. 2) was got recorded under Section 200 Cr.P.C. and the statements of the witnesses Dinesh Kumar son of late Nankoo and Ravi Kumar son of Sri Kali Charan were got recorded under Section 202 Cr.P.C. and the learned C.J.M. vide order dated 25.8.2006 took cognizance of the complaint and summoned the applicants under Section 379 I.P.C.
Aggrieved the applicants have sought quashing of the entire proceedings of the complaint case.
It is vehemently contended on behalf of the applicants that the complaint has been filed on incorrect facts with mala fide intentions and oblique motive simply to harass and victimize them. The opposite party no. 2 has lodged the complaint consequent to the refusal of the applicants to give the outhouse to the nephew of the opposite party no. 2. He submits that the bungalow No. 13/15, Clive Road, Civil Lines, Allahabad belonged to one Mr. W.H. Tuck. The father of the opposite party no. 2 late Ram Jani was residing in an outhouse of the aforesaid bungalow in the capacity of a servant. However, later on Mr. W.H. Tuck vacated the bungalow sometime in the year 1975, but his servant Ram Jani continued to occupy the outhouse. The bungalow was occupied by the applicant no. 2 and Ram Jani and his wife Smt. Shanti Devi began to work as servants of the applicant no. 2. Ram Jani had three sons i.e. Kamta Prasad, Ashok Kumar and Gopal (opposite party no.2). After death of Ram Jani and Kamta Prasad, Smt. Shanti Devi and her two sons Ashok Kumar and Gopal continued to occupy the outhouse with the permission of the applicant no. 2. However, later on the opposite party no. 2 was employed as "Bandi Rakshak" in Pratapgarh District Jail and shifted to Pratapgarh with his wife and children and began to live in a quarter allotted to him by the jail authorities. Ashok Kumar employed as clerk in Central Excise Department, Allahabad got constructed a house in Patrakar Colony and started to live there. He had handed over the vacant possession of the outhouse to the applicant no. 2 Ashok Kumar vide letter dated 20.10.2005 (Annexure-1 to the affidavit filed in support of the application under Section 482 Cr.P.C.) and requested the applicant no. 2 to permit the son of his sister i.e. Ravi Kumar to reside in the outhouse as he was pursuing his BA-IInd year course. The applicant no. 2 refused the permission whereafter Ravi Kumar along with his friends entered the campus of bungalow No. 13/15, Clive Road, and misbehaved with the applicants. He, however, apologized for the incident later on. The applicant refused to give the accommodation to the said Ravi Kumar. The complaint under Section 156 (3) Cr.P.C. is the outcome of the said refusal.
The learned counsel for the applicants further submits that the applicants are practicing advocate of Allahabad High Court and respectable persons of the society. The allegations levelled against the applicants in the complaint are absurd and improbable as no prudent person can steal household goods of their servants residing in their outhouse. The statement of Ravi Kumar recorded under Section 202 Cr.P.C. cannot be relied upon as it runs contrary to the letter dated 20.10.2005. The statement of Ashok Kumar elder brother of the opposite party no. 2 has not been got recorded which casts a shadow of doubt upon the allegations levelled in the complaint. The learned Magistrate has not applied his judicial mind before issuing the process under Section 404 Cr.P.C. and the summoning order has been issued in a mechanical manner which cannot be sustained. No offence under Section 379 IPC. can be said to be made out against the applicants and as such, the entire proceedings of the Complaint Case No. 32253 of 2005 are liable to be quashed.
The learned AGA has opposed the petition and submits that the learned Chief Judicial Magistrate has committed no error in registering the case against the applicants and summoning them to face the trial. The allegations in the complaint discloses the offence of theft against the applicants and the petition deserves to be rejected.
In order to appreciate the submissions of the learned counsel for the applicants it would be appropriate to analyze the provisions of Section 378 and 379 IPC. Section 378 IPC defines Theft while Section 379 IPC provides for Punishment of Theft. The provisions are quoted hereunder:-
"378. Theft.?Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.?A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.?A moving effected by the same act which affects the severance may be a theft.
Explanation 3.?A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.?A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.?The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
Illustrations
(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z's consent. A has committed theft as soon as Z's dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.
(d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession, and A has not committed theft, though he may have committed criminal breach of trust.
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the highroad, not in the possession of any person. A by taking it, commits no theft, though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z's hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property in as much as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z's possession, without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's book. If this was A's impression, A has not committed theft.
(n) A asks charity from Z's wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z's wife is authorized to give away alms. If this was A's impression, A has not committed theft.
(o) A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of B's possession. Here, as A does not take dishonestly, he does not commit theft.
379. Punishment for theft.?Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
From the above, it is clear that Section 378 IPC define "Theft" as the dishonest removal of movable property out of the possession of any person without the consent of that person. "Theft" has the following ingredients, namely, (i) dishonest intention to take property; (ii) the property must be movable; (iii) it should be taken out of the possession of another person; (iv) it should be taken without the consent of that person; and (v) there must be some moving of the property in order to accomplish the taking of it.
To bring home an offence under Section 378 IPC, the prosecution is to prove (a) that there was a movable property; (b) that the said movable property was in possession of person other than the accused; (c) that the accused took it out as moved it out of the possession of the said person; (d) that the accused did it dishonestly i.e. with intention to cause wrongful gain to himself or wrongful loss to another; (e) that the accused took the movable property or moved it without the consent of the possessor of the movable property.
A Court while dealing with a plea of theft is not required to adjudicate on rival claims of title claimed by the parties. All that the Court has to decide is whether at the time of the alleged incident the property which is the subject matter of theft was in the possession of the complainant and whether it was taken out of the possession of the complainant with a dishonest intention. "Possession" referred to in Section 378 IPC is actual, physical possession and not merely possession in law.
Now, having regard to the facts and circumstances of the case, the Court is of the opinion that no case under Section 379 IPC can be said to be made out against the applicants from the allegations set out in the criminal complaint lodged against them. The reasons for the same are as under:
(i) The complainant/opposite party Gopal son of late Ram Jani used to reside in the outhouse of the bungalow No. 13/15 Clive Road, Civil Lines, Allahabad along with his brother Ashok Kumar. However, Gopal along with his family shifted to Pratapgarh on his being appointed as "Bandi Rakshak" in Pratapgarh District Jail. Ashok Kumar shifted to his newly constructed house in Patrakar Colony, Allahabad and handed over the possession of the outhouse to the applicant no. 2 as is evident from the letter dated 20.10.2005 of Ashok Kumar filed as Annexure-1 to the affidavit filed in support of the application under Section 482 Cr.P.C.
(ii) The factum that vacant possession of the outhouse had been handed over to the applicant no. 2 is also apparent from the letter dated 20.10.2005 (Annexure-3 to the affidavit) of Ravi Kumar, the nephew of the opposite party no. 2 Gopal wherein he has requested the applicant no. 2 to permit him to live in the outhouse wherefrom he can complete his studies.
(iii) The report of the Police Station Civil Lines, Allahabad clearly reveals that the factum of theft is not established and that the application under Section 156 (3) Cr.P.C. has been filed on exaggerated facts.
(iv) Since admittedly the possession of the outhouse was not with the complainant/opposite party no. 2, the allegations set out in the complaint fall flat. The ingredients necessary to constitute an offence of theft i.e. movable property being in the possession of the complainant/opposite party no. 2 in the outhouse, the applicants having moved it out of the possession of the opposite party no. 2 dishonestly and without the consent of the opposite party no. 2 are not present.
(v) The complaint appears to have been instituted on the refusal of the applicant no. 2 to give the outhouse to the nephew of the opposite party No. 2. The action on the part of the complainant/opposite party No. 2 appears to be mala fide.
(vi) The allegations in the complaint appear to be covered by illustration (e) to the Section 378 IPC. No case of theft against the applicants can be said to be made out.
The Apex Court in the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335 held as under:-
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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)The Code of Criminal Procedure 1973; Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)The Code of Criminal Procedure 1973; 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 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
The law laid down in the case of Bhajan Lal (Supra) was reiterated in the case of State of Andhra Pradesh Vs. Golconda Linga Swamy and another, (2004) 6 SCC 522 wherein the Apex Court has observed as under:-
"5. Exercise of power under Section 482 of the Code 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 the Code. It 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. 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. 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 recognizes 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 course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising 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 courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such 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 exercises of the powers court would be justified to quash any proceeding if it finds that initiation or 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 complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this Court summarized 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 its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the 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. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) A note of caution was, however, added that the power should be exercised sparingly and that too in 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 F.I.R. 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 F.I.R. 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 S. 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 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
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. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). 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. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR 1999 SC 1216), State of Karnataka v. M. Devendrappa and another (2002 (3) SCC 89)."
Yet again the Apex Court in the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque, reported in 2005(1) SCC 122 observed as under:-
"11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: (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 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 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."
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. 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 (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). 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 a 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 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 that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint 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 themselves be the basis for quashing the proceedings. (See: Dhanalakshmi vs. 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 Delhi."
In Hira Lal versus State of U.P., [2009 (11) SCC 673] the Apex Court held as under:
"10. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide."
Again the Apex Court in Manoj Mahavir Prasad Khaitan versus Ram Gopal Poddar and another, [(2010) 10 Supreme Court Cases 673] has observed as under:
"12. We reiterate that when the criminal Court looks into the complaint, it has to do so with the open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C."
In view of the above and for the reasons stated above, the Court is of the considered opinion that the continuation of the criminal proceedings against the applicants is an abuse of the process of the Court and ends of justice requires that the said proceedings be quashed.
Consequently, invoking the inherent powers under Section 482 Cr.P.C., the entire criminal proceedings of Complaint Case No. 32253 of 2005 (Gopal versus Mahesh Chandra Agarwal and another) under Section 379 IPC pending before Chief Judicial Magistrate, Allahabad is hereby quashed.
The application stands allowed.
Order Date :- 2.12.2021 Ravi Prakash