Delhi High Court
Smt. Sangeeta And Ors. vs The State And Ors. on 20 February, 2002
Equivalent citations: 2002IIIAD(DELHI)1109
JUDGMENT V.S. Aggarwal, J.
1. I have the advantage of going through the well considered judgment of my esteemed brother. On certain aspects I fail to subscribe to the view taken therefore, a separate judgment is being recorded.
2. The sole question that comes up for consideration is as to under what circumstances the High Court would exercise its extraordinary jurisdiction vested under Article 226 and 227 of the Constitution of India and its inherent powers under Section 482 Code of Criminal Procedure and whether in the facts of the present cases it would be appropriate to exercise such powers.
3. By virtue of the present petitions petitioners seek quashing of the criminal proceedings of FIR 408/97 Police Station Model Town and quashing of the order dated 15th December, 1988 passed by the learned Magistrate taking cognizance of the offences against the petitioners besides directing certain proceedings to be taken against the erring officials.
4. The learned Metropolitan Magistrate on submission of their report by the concerned officer in charge of the Police Station on 15th December, 1988 had passed the following order:-
"Heard: perused; being satisfied cognizance for offences under Section 542/506/323/34 IPC taken against each of the accused. Issue B/W for 24.3.1999 in the sum of Rs. 5000/-.
sd/ M.M. Delhi"
5. The process of law had been set into motion in pursuance of the compliant made by Mrs. Saroj Behl. In her complaint made to the officer in charge of the Police Station she had pointed out that there is one Mrs. Kamini w/o Hira Lal Asrani on 28th June, 1996 she trespassed into the flat of the complainant forcibly with about 10 other ladies. They started abusing and beating her. Mrs. Kamini was stated to be a special police officer, press photographer and reporter, as per her name plate. She had led all the ladies and beaten the complainant with her sandals and pressed her throat. She continues to threaten her. The husband of Mrs. Kamini was stated to be President of the voluntary society of the residents and Mrs. Kamini proclaims herself as the president of the society. The First Information Report on basis of this complaint was recorded much later and subsequently as already mentioned above report under Section 173 Code of Criminal Procedure had been submitted. It appears that there is a residential group housing society comprising of about 68 flats in three blocks at G. T. Karnal Road known as Bijli Apartments. Mrs. Kamini as already pointed out claimed herself as president of the society. The husband of respondent No. 4 who is the complainant in the First Information Report had not openly objected to the activities of Mrs. Kamini. There are assertions and counter assertions which are not relevant for disposal of the present petition and therefore it is unnecessary to refer to all of them.
6. Petitioners claim is that recording of the First Information Report and subsequent submission of the report under Section 173 Code of Criminal Procedure is a glaring incident of misuse of the powers by respondents 2 and 3 who are the police officials involved in registration of the case and subsequent investigation and filing of the charge-sheet. According to the petitioners the allegations made in the complaint as well as the statement recorded under Section 161 Code of Criminal Procedure do not constitute any offence against the petitioners and the learned Magistrate has also summoned the petitioners without proper application of mind. The petitioners claim that they are housewives residing in their respective flats referred to above. There is one person called Sudhir Behl residing in flat No. 7 and 8, B Block, he has been teasing and passing indecent remarks against the women residing in the other flats. The ladies who ave been residing in the said apartment have informed and complained to the wife of Sudhir Behl regarding the misbehavior and passing of indecent remarks. This had annoyed Sudhir Behl and as per the petitioners as a counter blast the complaint was filed by the wife of Sudhir Behl asserting that the complaint filed is mala fide and that no offence is disclosed, the above reliefs have been claimed.
7. Needless to state that in the reply filed respondent No. 4 has contested the petition alleging that there is no ground to quash the order passed by the learned Magistrate and in any case the petitioners can raise all these pleas before the learned Magistrate for recalling the order so passed.
8. Before venturing into above said controversy it can well be stated that so far as powers under Section 482 of the Code of Criminal Procedure which is by and large parimateria with Section 561A of the Code of Criminal procedure, 1898 are concerned, the same would be exercised to prevent abuse of the process of the court or otherwise to secure the ends of justice or to give effect to any order of the court. The powers conferred on the High Court which is under its extraordinary jurisdiction under Article 226 and 227 are not subject of any such limitation. In an appropriate case interference would be called for but as a self-imposed restriction the High Court would certainly once again only quash proceedings in which cognizance has been taken by the court by the large on the same lines as contemplated under Section 482 Code of Criminal procedure Code. The basic principle would be the same as already referred to above.
9. Learned counsel for the petitioners have highlighted the fact in their respective arguments that because of the earlier complaint this was a counter blast. The complaint by itself is tainted with mala fide and therefore this court should use its powers referred to above to quash the proceedings and even the order above passed by the Judicial Magistrate taking cognizance of the offences. While learned for private respondent as well as the Standing Counsel for the State urged that once the cognizance has been taken and a judicial order has been passed the High Court should not set aside or quash any such order and in any case it was contended further that on basis of the material collected necessary offences were drawn.
10. One of the earliest cases decided by the Supreme Court on the subject was the decision rendered in the case of R.P. Kapoor v. State of Punjab . The question in controversy was once again the same as to under what circumstances the High Court would use the inherent powers to quash the proceedings. The Supreme Court held that it is not possible to lay down any inflexible rules which would govern the exercise of the inherent powers but to mention some of the cases in which such powers could be utilised it was held:-
"..... However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge....."
11. However, by way of caution the Supreme Court provided that:
"..... In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. ....."
(emphasis added)
12. Thus a clear bar was raised that High Court is not to embark on the enquiry as to whether the evidence is reliable or not.
13. A Full Bench of the Kerala High Court in the case of P.M. Nianan and Ors. v. The Executive Officer, Anikad and Ors., was concerned with the question as to whether a writ petition would be maintainable against the order of the High Court in a criminal revision or not. In the cited case the accused were proceeded against for violating certain rules of the Prevention of Food Adulteration Rules. The High Court had held that rule was valid. Full Bench held that writ petition would not be maintainable as the decision of the High Court holding the rule to be valid would be res judicata. Indeed the logic and reasoning of the cited decision have little application to the facts of the present case and has no impact or reliance to be gone into. Therefore further opinion in this regard need not be expressed. The said decision was basically confined to the peculiar facts of that case.
14. The Calcutta High Court in the case of K.L. (P) Ltd. and Ors. v. The Municipal Commissioners of Kamarhati Municipality and Ors., 1985 Crl. J. 26 was concerned with almost a similar question but facts were little different. There were proceedings pending under Section 133 Code of Criminal procedure. Executive Magistrate had issued notice. The petitioner before the High Court had filed an application for quashing of those proceedings. The proceedings had been stayed but the Executive Magistrate passed final order. One of the question raised was as to whether the party concerned should be left to pursue its remedy by filing a revision petition against that order or the proceedings should be quashed. The Calcutta High Court held:-
"Generally, I would not be inclined to interfere in a criminal proceeding where the Criminal PC provides adequate alternative reliefs. But in the facts and circumstances of this case, it appears to me that it would defeat the ends of justice if I dispose of this application in favor of the respondents on this preliminary ground."
15. Once again it was an extreme case where the Executive Magistrate had passed the order despite the stay order granted and therefore the proceedings as such were quashed because it was held that otherwise it would defeat the ends of justice. One deems it necessary to mention that it was confined to again the peculiar facts of that particular case and the judicial order was quashed.
16. Strong reliance however on behalf of the petitioners is being placed on the decision of the Supreme Court in the case of Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. . The Supreme Court in the said case held:-
"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 uncontroverter 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 a 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."
17. In other words, it was held that even when charge-sheet has been filed, proceedings for quashing the same if the offence is not likely to end up in conviction could be quashed. This decision of the Supreme Court had been considered by the subsequent decision of the Supreme Court in the case of State of Bihar v. P.P. Sharma, IAS and Anr., 1992 Supp (1) SCC
222. The Supreme Court held that the decision in the case of Madhavrao Jiwajirao Scindia (supra) was confined to the facts where allegations constituted civil wrong and the trustees created tenancy of trust property in favor of third party. It was held that ratio decidendi of that decision does not hold in all cases that court would examine at preliminary stage whether there would be ultimate chance of conviction on basis of the allegations or not.
18. In fact in the case of State of Bihar v. P.P. Sharma (supra)) the Supreme Court deprecated the practice of the High Courts scrutinising the evidence when the matter is under the gaze of the judicial Magistrate for scrutiny. In paragraph 33 Hon'ble Mr. Justice Kuldip Singh held:
"The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We are of the considered view that at a stage when the police report under Section 173 Cr.PC has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgment having been addressed by the learned counsel for the parties we thought it proper to deal with all the aspects of the case."
19. Hon'ble Mr. Justice K. Ramaswamy in a concurring but separately recorded judgment in this regard went into the same controversy as to whether the High Court in exercise of its extraordinary jurisdiction would interfere and quash the charge-sheet. It was held that before cognizance is taken if proceedings are quashed it would amount to killing a still born child. The precise findings reads:-
"Another crucial question is whether the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, would interfere and quash the charge-sheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the counter-affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that no prima facie case was made out on merits and chances of ultimate conviction is "bleak". The court is not passive spectator in the drama of illegalities and injustice. The inherent power of the court under Article 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents "demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed", and "in such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option but to grant the relief by quashing the FIR and both the charge-sheets".
Accordingly it quashed them. If this decision is upheld, in my considered view startling and disastrous consequence would ensue. Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to "killing a stillborn child....."
20. The Supreme Court further went on to hold that the High Court is not to go into the merits on the plea of proof of prima facie of case nor go into the pre-trial of a criminal case in exercise of extraordinary jurisdiction under Article 226 of the Constitution.
21. Another decision which laid down in detail certain basic principles was the State of Haryana v. Bhajan Lal . By way of illustration it was provided as to under what circumstances the court would quash the proceedings and without being exhaustive those circumstances provided were:-
"(1) Where the allegations made int he 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 uncontroverter 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 proceedings 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 or personal grudge."
22. Our attention has been drawn with vehement to the decision of the Supreme Court in the case of Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors. 1998 SCC (Crl.) 1400. In paragraph 28 the Supreme Court held:-
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only tow witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
23. In the ratio decidendi of the above decision would only come into play because of the facts of the case. On the peculiar facts the Supreme Court had concluded that no case as such was drawn and therefore the proceedings were quashed.
24. Same was the position in the case of Hridaya Ranjan Pd. Verma and Ors. v. State of Bihar and Anr. . A case had been registered for cheating and Supreme Court noted that dishonest intention of the accused at the beginning of the negotiations was not drawn and therefore the proceedings were liable to be quashed. Once again the proceedings were quashed because as per the assertions made it was noted that no case is made out. To the same effect is the decision of the Supreme Court in the case of Ashim Kumar Roy v. Bipinbhai Vadilal Mehta and Ors. 1998 SCC (Cri) 269.
25. At this stage reference can further be made to few later judgment of the Supreme Court. In the case of Delhi Development Authority v. Rajinder Sharma JT 2001 (5) SC 572 cognizance had been taken by the court, High Court had quashed the same on the ground that zonal plan had not been approved by the Central Government by the date of the offence. The Supreme Court held that complainant could not be forestalled from producing the evidence and substantiating their allegations and thus concluded that it was not proper to quash the proceedings. The precise findings in this regard are:-
"we are of the opinion that the High Court has quashed the proceedings forestalling the complaint from producing the evidence in the trial court or substantiating their allegations in the complaint. We refrain from expressing our opinion on the rival contentions as to the merits but we are of the definite opinion that trial should proceed and reach its logical conclusion. To facilitate the aforesaid courts we set aside the impugned order."
26. Similarly in the case of M.N. Damani v. S.K. Sinha and Ors. JT 2001 (Suppl.1) SC 375 a private complaint had been filed alleging defamation arising from the criminal case for dishonour of the cheque. The Magistrate had taken cognizance of the offence directing issue of the summons. A petition was filed for quashing of the same. It was noted that the decision int he case of Madhavrao Jiwajirao Scindia and Ors. (supra) was on the facts of that case having regard to various factors including nature of the offences, relationship of the parties, trust deeds and the correspondence. It was held that at the initial stage when only cognizance had been taken the High Court should not go into the fact as to whether there is prospect of conviction resulting in the case after trial and in this process the High Court's order was set aside restoring that of the Magistrate.
27. More recently the Supreme Court in the case of State of Karnataka v. M. Devendrappa and Anr. 2002 AIR SCW 286 had once again considered the same controversy. It was held that it is not proper for the High Court to analyze the case of the complainant in light of probabilities nor determine whether a conviction would be sustainable on such premises. It would be erroneous to assess the material before it and conclude that complaint cannot proceed with only 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 High Court to is not to meticulous analyze the case or go into the allegations of mala fides. In the penultimate paragraph the Supreme Court held:-
"..... 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 convection 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 itself be the basis for quashing the proceeding......"
28. From the aforesaid the conclusions drawn are obvious the decisions rendered in the case of R.P. Kapur (supra) and Bhajan Lal (supra) have stood the test of time and therefore it is only in rarest of rare cases that where the Magistrate has taken cognizance the High Court would quash the proceedings. The cases cited, namely in the case of Pepsi Food and Madhavrao Jiwajirao Scindia (supra) were confined to its facts because it was concluded that on basis of assertions made no offence is drawn. The decisions therein thus cannot be taken to be precedent that the evidence in detail has to be scrutinised. In fact as noted in the catena of decisions quoted the High Court will not indulge in pre-trial adjudication and express opinion in this regard. Once the matter is under gaze of judicial Magistrate ordinarily the parties should be left to take appropriate steps before the Judicial Magistrate and even request for recalling of the order as held by the Supreme Court in the case of K.M. Mathew v. State of Kerala and Anr. 1992 Crl.L.J. 3779.
29. However if on basis of the assertions made in the complaint no offence as such is drawn the High Court would quash those proceedings. It is on the touchstone of the aforesaid principles more elaborately mentioned in the case of R.P. Kapur and Bhajan Lal (supras) one has to look back to the facts of the case. In the complaint filed by Saroj Behl to the officer in charge of the Police Station Model Town she had asserted that:
Sir, I am a resident of Flat No. 7 & 8 Ground Floor, B Block, Bijli Apartment, G.T. Karnal Road, Delhi.
There is one Mrs. Kamini 2nd wife of Sh. Hira Lal Asrani who is living in Flat No. B-28, above the flat of the applicant.
On 28th June, 96, in the afternoon she trespassed into my flat forcibly with about 10 other ladies resident of other flats. I was alone in the house. They started abusing and beating me.
Mrs. Kamini is a special police officer, press photographer and report's as per her name plate. She lead of all the ladies. She beat me with her sandles and pressed my throat to kill me. She is continuing to threaten to kill me.
Her husband Shri Hira Lal Asrani is at present President of the voluntary society of resident. She claims herself to be president of the society and a police officer.
Please save me from her and her associated ladies and gents who are also threatening to kill even my husband.
She has complained against my husband on the basis of hearsay. My husband Sudhir Kumar was not at home when they trespassed into my house and attacked me.
The name of other ladies accompanying in the trespass and attach may be checked from her.
One elderly lady from the other flat above my flat on hearing the commotion came rushing and saved me from their clutches.
Kindly save my and my husband life from them and oblige.
30. It is on the basis of the same that the First Information Report has been recorded. Statement of Mrs. Maya who is stated to be a maid servant has also been recorded and even she recites that she only knows Mrs. Kamini, one of the petitioners and does not name any of the other ladies. Another statement has been recorded of Inderjit Sethi. The name of Mrs. Kamini is taken but not any other lady.
31. At this stage if there are mala fides or not that has to be looked into by the trial court and no opinion is being expressed but it is patent that name of Mrs. Kamini, one of the petitioners is specifically mentioned in unambiguous terms, a role has been assigned to her in the complaining statement. Further probing or meticulous examination of whether the same would succeed or not is not required nor it would be proper for this court to look into the same. In the face of the aforesaid it is entirely for the trial court to look into all the facts and draw an appropriate conclusion in accordance with law. The petition of Mrs. Kamini must therefore fail.
32. As regards the other petitioners the position is different. In the complaining report which is the basis of the first information report, their names are not forthcoming. Their descriptive features even has not been given to identify the same. Indeed by investigation their names as such could be traced. But it is admitted on the record that no arrest till the challan was presented had been made. Thus, there could not be any identification before the same nor has it been shown during the course of submission that any such exercise had undergone. Thus on basis of the material placed on the record before us it is patent that as against others no case is drawn because in the absence of any proper identification a supplementary statement of the person who had not named these other petitioners has no legal consequence.
33. Keeping in view the aforesaid the petition filed by Mrs. Kamini is dismissed as against others the proceedings are quashed.