Punjab-Haryana High Court
Dr. Sunil Kumar R/O Ram Nagar vs State Of Punjab on 27 July, 2010
Criminal Misc. No. M-21243 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-21243 of 2010
Date of Decision: 27.07.2010
1. Dr. Sunil Kumar r/o Ram Nagar, Sua Road, Giaspura,
Ludhiana.
2. Munni Begam wife of Ejaj Ahmad, r/o TR Gupta
Memorial School, Hargobind Nagar, Giaspura,
Ludhiana.
... Petitioners
Versus
1. State of Punjab.
2. Mustak Khan son of Sh. Ashak Ali, r/o Emilha Puri,
P.S. Moti Ganj, District Gonda (U.P.), presently at
Street No. 3, New Ram Nagar, Sua Road, Giaspura,
Rajinder Parshad Da Vehra, Ludhiana.
...Respondents
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Joginder Sharma, Advocate,
for the petitioners.
SHAM SUNDER, J.
This petition under Section 482 Cr.P.C., for quashing FIR No. 106, dated 27.03.2010, under Section 304 read with Section 34 IPC, P.S. Focal Point, District Ludhiana, and, all the subsequent proceedings, arising therefrom, on the basis of compromise (Annexure P2), has been filed by the petitioners.
2. The FIR, was registered, on the basis of the statement of Mustak Khan, on the allegations, that his wife, was expecting Criminal Misc. No. M-21243 of 2010 2 delivery. On 27.03.2010 at 10.30 AM, he went to Dr. Sunil Kumar of Ram Nagar, Sua Road, Giaspura, near Anand Vidya Mandir, Ludhiana, and requested him, that he should accompany him, to his house for examining his wife. Dr. Sunil Kumar, told him, that he should go to his house and he would come there alongwith a nurse, from Solanki Hospital, Giaspura, for the purpose of facilitating the delivery of his wife. At about 11.00 AM, Sunil Kumar alongwith Munni Begam, nurse, came to the house of the complainant. Some medicines, as per the instructions of Dr. Sunil Kumar, were brought, by the complainant. Dr. Sunil Kumar and the aforesaid nurse, started the process of delivery. His wife, however, started crying from inside the room, that Sunil Kumar and the nurse, would kill her. When he asked the doctor, he told him, that he should sit outside. Thereafter, the complainant, sat outside that room. After sometime, the complainant, was told, that a daughter, had been born, to his wife. Munni Begam, nurse, cut the umbilical cord of the newly born daughter. Thereafter, Sunil Kumar and Munni Begam, asked his wife to cough and when she did so, the nurse aforesaid put her finger forcibly, in her mouth, with a view to make her to vomit. But, she could not vomit. Thereafter, Munni Begam, put her hand, in the uterus of the wife of the complainant, and, the same, was taken out. The wife of the complainant, started crying loudly, and, her condition became precarious. Thereafter, Dr. Sunil Kumar, told him, that she, should be taken immediately, to Cancer Hospital. When the Criminal Misc. No. M-21243 of 2010 3 complainant, was taking his wife, to the Cancer Hospital, she died, outside the same. The doctors, in the hospital, told that, she was brought dead. Thereafter, Sunil Kumar and Munni Begam, left that place.
3. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully.
4. The Counsel for the petitioners, submitted that, the parties, have arrived, at a compromise. He also placed reliance, on compromise (Annexure P2), in the form of affidavit of Mustak Khan, complainant. He further submitted that, if the compromise, is accepted, it will go a long way, to create better relations, between the parties.
5. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is Criminal Misc. No. M-21243 of 2010 4 neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases:
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 Criminal Misc. No. M-21243 of 2010 5 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.Criminal Misc. No. M-21243 of 2010 6
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.
Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
6. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should Criminal Misc. No. M-21243 of 2010 7 not be used capriciously or arbitrarily, but should be exercised, in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioners, deserve the indulgence of the Court or not. There are serious allegations, against the accused- petitioners, that they killed the wife of the complainant, at the time of her delivery, by their inhuman and crude act, referred to above. The accused were allegedly having knowledge, that their such act was likely to cause death of the wife of the complainant. The mere fact that, the petitioners, entered into compromise (Annexure P2) with the complainant, did not absolve them of their criminal liability. The provisions of Section 482 of the Cr.P.C. cannot be invoked for quashing the FIR relating to such a serious offence. If, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete chaos in the society. Even otherwise, the offence, punishable under Section 304 read with Section 34 IPC, allegedly committed by the petitioners, is against the public policy and society. In the present case, the offence, punishable under Section 304 IPC, is non-compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non-compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Criminal Misc. No. M-21243 of 2010 8 Section 482 Cr.P.C. In Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in the proceedings, under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows :
"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with Criminal Misc. No. M-21243 of 2010 9 an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise."
29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code".
Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar Criminal Misc. No. M-21243 of 2010 10 under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Criminal Misc. No. M-21243 of 2010 11 Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
7. In view of the principle of law, laid down, in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar, created by Section 320 Cr.P.C., for the composition of offence, punishable under Section 304 read with Section 34 IPC. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then the crime will increase manifold, and the criminals will feel encouraged. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings.
8. For the reasons recorded above, Criminal Misc. No. M-21243 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.
9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.
27.07.2010 (SHAM SUNDER) Amodh JUDGE