Patna High Court - Orders
Bal Manohar Jalan & Anr vs The State Of Bihar & Anr on 10 April, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.16293 of 2011
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1. Bal Manohar Jalan, S/O Late Hira Lal Jalan, R/O Quila House, Patna
City, P.S. Chowk, Patna
2. Aditya Jalan, S/O Bal Manohar Jalan, R/O Quila House, Patna City, P.S.
Chowk, Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Sumitra Jalan, W/O Late Murli Manohar Jalan, R/O Quila House, Patna
City, P.S. Chowk, Patna
.... .... Opposite Party/s
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with
Criminal Miscellaneous No.8960 of 2011
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1. Bal Manohar Jalan, son of late Hira Lal Jalan, resident of Quila House,
Patna City, P.S. Chowk, Patna.
2. Giriraj Manohar Jalan, son of late Hira Lal Jalan, resident of Quila
House, Patna City, P.S. Chowk, Patna, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Ravi Jalan, son of late Murli Manohar Jalan, resident of Quila House,
Patna City, P.S. Chowk, Patna.
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.28919 of 2011
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Ravi Jalan, son of late Murli Manohar Jalan, resident of Mohalla Kila
House, Police Station-Chowk, Patna City, District-Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Giri Raj Monohar Jalan, son of alte Hiralal Jalan, resident of Mohalla-
Kila House, Police Station-Chauk Patna City.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Kumar Singh, Sr. Advocate.
Mr. Mrigank Mauli,
Mr. Kamlesh Kumar Sharma,
Mr. Vinay Mistry, Advocates.
(in all above three cases)
For the Opposite Party No.2: Mr. Om Prakash Pandey,
Mr. Satyedra Pandey, Advocates.
(in all above three cases)
For the State : Mr. Jharkandi Upadnyay, A.P.P.
(in all above three cases)
Patna High Court Cr.M isc. No.16293 of 2011 (12)
2
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
12 10.4.2013With the consent of the parties all the aforesaid cases were made analogous and have been heard together and are being disposed of by this common order. The parties in the aforesaid cases are close agnates and having disputes concerning to the ancestral properties which led to filing of cases and counter cases by both sides.
Criminal Miscellaneous No.8960 of 2011
2. This application has been filed for quashing the order dated 10.12.2009 passed in Patna City Chowk P.S. Case No. 156 of 2008 by Additional Chief Judicial Magistrate, Patna City by which he has taken cognizance against the petitioners for the offences under Sections 307, 379, 448/34 of the Indian Penal Code and 27 of the Arms Act.
3. Before examining the merit of the cases it will be necessary to state the background of the cases and relationship of the informant vis-à-vis the accused persons and the cause for which cases after cases and counter cases have been filed in between both sides. The informant and accused are close agnates. The informant is the nephew of the accused Patna High Court Cr.M isc. No.16293 of 2011 (12) 3 persons. Late Radha Krishan Jalan had one son, namely, late Hiralal Jalan. Late Hira Jalan had four sons, namely, Giriraj Manohar Jalan, late Murli Manohar Jalan, late Shyam Manohar Jalan and Bal Manohar Jalan. It appears from the record that Radha Krishan Jalan as well as Hiralal Jalan accumulated huge property worth of more then thousand crores. The dispute is basically with regard to the property dispute right from beginning as Murli Manohar Jalan was eldest son of Hiralal Jalan and possess movable and immovable property and father of Hiralal Jalan had also filed criminal case against his eldest son, namely, Murli Manohar Jalan father of the present informant.
4. In the present case an F.I.R. has been lodged by Ravi Jalan informant of the present case against his Uncles, namely, Bal Monohar Jalan and Giriraj Manohar Jalan petitioners of this case and other persons. The timing of lodging the First Information Report was at 9.40 A.M. on 21.9.2008 for offences under Sections 307, 379, 448/34 of the Indian Penal Code and 27 of the Arms Act and the same was registered as Patna City Chowk P.S. Case No.156 of 2008. In the written complaint it has been alleged that on 21.9.2008 at 5.20 hour Bal Manohar Jalan, Giriraj Manohar Patna High Court Cr.M isc. No.16293 of 2011 (12) 4 Jalan, aged about 50-55 years, Nandu Mahto, Sudhir Mahto, Jamuna Mahto, Lala Rai, Anil Kumar and 10-15 unknown persons forcibly entered into his house armed with revolver and pistols and they started firing indiscriminately and it was narrow escape of the informant from the bullet. The reason has been assigned for the incident as the informant had sowed Cauliflower and Papaya and the accused persons and their henchmen were forcibly plucking the same which was resisted led to filing of the present case. It has further been alleged that all the accused persons with the help of Bal Manohar Jalan took out neck less of diamond having cost of Rs.50,000/-. It has further been alleged that there is an order of injunction passed in Title Partition Suit No. 45 of 1958 against Bal Manohar Jalan and others and in different criminal cases the police has submitted charge-sheet, request was made to take action in the matter.
5. The police investigated the case, found material against the petitioners, submitted charge-sheet, and the court below on the basis of the material on record took cognizance of the offence as aforesaid.
Criminal Miscellaneous . No. 28919 of 2011.
6. It appears from the record that Giri Raj Manohar Patna High Court Cr.M isc. No.16293 of 2011 (12) 5 Jalan has filed the case against Ravi Jalan, Raj Kumar, Uday Kumar and 6-7 unknown persons for offences under Sections 447, 307,341/34 of the Indian Penal Code and 27 of the Arms Act and the same was registered as Patna City Chowk P.S. Case No.155 of 2008. It appears from the record that this First Information Report was lodged at 9.40 A.M. by Giri Raj Manohar Jalan Uncle of Ravi Jalan and in the written complaint it has been alleged that on 21.9.2008 at 6 o‟clock the petitioner, Ravi Jalan, along with 6-7 persons in illegal way entered into his field and plucked the cauliflower, when intercepted to take away the same, the petitioner, Ravi Jalan, exhorted for firing and the person, namely, Raj Kumar aiming the informant resorted three firing but it was narrow escape. It has further been alleged that when he started fleeing away from the scene two bullets hit the showcase of the Museum and caused breaking of glass. Another person, namely, Uday Kumar came at the place of occurrence and resorted indiscriminating firing which hit the wall. It has further been alleged that Ravi Jalan petitioner in a planned way wanted to kill the informant. The aforesaid firing was noticed by his nephew, Nikhil Jalan, Sharwan Singh, Lal Babu and other staffs of Kila House and Patna High Court Cr.M isc. No.16293 of 2011 (12) 6 on the basis of the aforesaid complaint the police investigated the case, submitted charge-sheet against Ravi Jalan and others under sections 307, 447/34 of the Indian Penal Code and 27 of the Arms Act and the court below took cognizance against the petitioner under the aforesaid sections.
Criminal Miscellaneous No.16293 of 2011.
7. This application has been filed for quashing the order dated 6.8.2007 passed in Patna City Chowk P.S. Case No.79 of 2007 by the Sub Divisional Judicial Magistrate, Patna City by which he has taken cognizance against the petitioners for the offences under Sections 504, 323 and 506/34 of the Indian Penal Code.
8. In this case the informant is mother of Ravi Jalan and wife of late Murli Manohar Jalan who happens to be own brother of Bal Manohar Jalan and uncle of Aditya Jalan who is son of Bal Manohar Jalan. In this case the First Information Report was lodged on 20.3.2007 at 20.15 hours where allegation has been made by the informant Sumitra Jalan, who is the eldest daughter-in-law of Jalan‟s family that her husband died in suspicious circumstances on 17.2.2005. Jalan‟s family has huge property movable and Patna High Court Cr.M isc. No.16293 of 2011 (12) 7 immovable worth of more than thousand of crores and for partition of the property Partition Suit No. 472 of 1993 has been pending in the court of Sub-ordinate Judge IV, Patna. It has further been alleged that in order to grab the whole property Bal Manohar Jalan, Aditya Jalan, Sanjiv Kumar, Sudhir Mahto, Siya Sharan Paswan, Sharvan Kumar, Jamuna Mahto and Shekhar Yadav have formed a criminal gang. On 20.3.2007 at 1.20 P.M. under the leadership of Bal Manohar Jalan the aforesaid persons entered into room and misbehaved with the informant. Bal Manohar Jalan thrashed her guard and asked her to pay Rs.2,000/- per months if she was interested to keep the guard for her safety. It has been alleged, Bal Manohar Jalan took away leather bag containing very important documents and also took away a laptop computer worth Rs.50,000/-. It has further been alleged, Bal Manohar Jalan was involved in smuggling of antique idol which led to filing of cases by the police vide Chowk P.S. Case No.84 of 2001 and 108 of 2001. The police submitted the charge-sheet against him for involvement in murder, robbery, kidnapping and rangdari. Prayer was made to the police to take suitable action against the accused persons as they were intended to outrage her Patna High Court Cr.M isc. No.16293 of 2011 (12) 8 modesty. The case was registered as Chowk P.S. Case No.79 of 2007 for the offences under Sections 448, 341, 232, 379/34 of the Indian Penal Code.
9. In Cr. Misc. No. 8960 of 2011 and Cr. Misc.
No.16293 of 2011 Bal Manohar Jalan is the common petitioner but in Cr. Misc. No. 8960 of 2011 Giriraj Manohar Jalan is the another petitioner where as in Cr. Misc. No.16293 of 2011 Aditya Jalan is the another petitioner. In connection with both the cases learned counsel for the petitioner has submitted that the informant Ravi Jalan and his father Murli Manohar Jalan and mother, Sumitra Jalan time to time have filed false cases and in series of the same these are of the case where mother and son have filed the present case in order to dictate the term of the partition of the family property. It has been submitted that the facts and attending circumstances are so apparent and transparent gives an inference the present cases are nothing but maliciously instituted case with ulterior motive of wreaking vengeance on the accused with a motive to settle the family dispute of partition on their dictating terms of share in the movable and immovable property left by late Hiralal Jalan.
10. Learned counsel for the petitioner in order to Patna High Court Cr.M isc. No.16293 of 2011 (12) 9 substantiate his contention has submitted that the informant‟s side are in the habit of filing false cases against the petitioners and their family members and in series of the same one of the case was filed by Harish Jalan vide Chowk P.S. case No.84 of 2001 for the offences under sections 147, 448, 427, 323, 504 and 380 of the Indian Penal Code. In this case it has been alleged that Bal Manohar Jalan, Giriraj Jalan , Aditya Jalan and 15-20 persons forcibly entered into the house after breaking the gate and assaulted by throwing stones and also attempted to kill him. Allegation has been made for hurling of abuses. It has further been alleged that another case was also lodged against Bal Manohar Jalan and Aditya Jalan vide Chowk P.S. Case No.108 of 2001 for the offences under Sections 375 and 306 of the Indian Penal Code about illegal entrance of the accused persons after breaking the lock and indulged in vandalism and when it was objected they have threatened for dire consequences. Allegation has been made of threat and intimidation snatching the valuable chain from the neck, also having made allegation of taking away other valuable articles. It has also been submitted that not only the son but mother also lodged the First Information Report vide Patna City Chowk Patna High Court Cr.M isc. No.16293 of 2011 (12) 10 P.S. No.79 of 2007 for the offence under Sections 448, 341, 323, 379/34 of the Indian Penal Code making allegation of misbehaviour with Sumitra Jalan. It has further been alleged that Murli Manohar Jalan who is son of Hiralal Jalan and husband of Sumitra Jalan was very notorious person and was in habit of indulge in misappropriation criminal breach of trust and theft of family property. It also appears from the record that Hiralal Jalan after the death of his father entrusted Murli Manohar Jalan to look after and manage the entire joint family property as at the relevant time he was the only major son of Hiralal Jalan. It has further been submitted that Murli Manohar Jalan became the head of the family moved to Calcutta for the purposes of imparting education of children. It has further been submitted that when Murli Manohar Jalan was the sole in-charge of the family property had committed criminal breach of trust as well as misappropriation of the joint family property. When the father could know about misdeed of his eldest son Hiralal Jalan was compelled to file the Chowk P.S. Case No.7 of 1956. As he could know that his misdeed was identified by his father he filed Title Partition Suit No.2603 of 1956 before Calcutta High Court which was dismissed as Patna High Court Cr.M isc. No.16293 of 2011 (12) 11 not maintainable due to lack of territorial jurisdiction. Subsequently in the year 1958 Hira Lal Jalan filed a partition suit vide Title Partition Suit No. 45 of 1958 where all Jalan‟s family have been made as party to the suit. Title Partition Suit No.45 of 1958 was decreed where the Court had directed for rendition of account for the period he was in-charge of the management of the family affairs and directed to adjust the same from his share. It has been submitted that till today no such account has been produced by Murli Manohar Jalan and after his death his successor Ravi Jalan or his mother who are heir and successor of Murli Manohar Jalan. Murli Manohar Jalan instead of placing account as per the decree of the Court but filed another Title Suit No.472 of 1993 where injunction was sought but the court did not find any prima facie case, balance of convenience and irreparable loss, refused to grant the same and the said order was challenged before this Court in Misc. Appeal No. 387 of 1994 and this Court has also affirmed the view taken by the lower court. It has further been submitted that the petitioners has been appointed as receiver of the property and they are in possession of the same and Ravi Jalan and his mother wanted to grab the Patna High Court Cr.M isc. No.16293 of 2011 (12) 12 property and disturb the peace and tranquility in the family. It has further been submitted that they have grabbed the family property and they are not interested for conclusion of the trial and they are in habit of making false allegation not only against the petitioners but also against the Presiding Officer of court below, even the Judges of this Court have not been left which is apparent from Annexure-9 series. In view of the facts, as stated hereinabove, counsel for the petitioner has submitted that this is basically out and out a malicious prosecution and in support thereof counsel for the petitioner has argued that section 482 of the Code of Criminal Procedure (hereinafter referred to as „the Code‟) is meant for these type of cases where facts so overwhelming indicative of maliciousness of other side for filing string of cases. The court in order to prevent the abuse of process of court should interfere with the proceeding of the court below. It has further been submitted, it would be in the ends of justice and to prevent abuse of the process of the court, the court may even look into unimpeachable facts and document for reaching to the right conclusion. He has submitted that the cases have been filed with impunity to settle the personal score apparent from filing the false and Patna High Court Cr.M isc. No.16293 of 2011 (12) 13 fabricated cases is apparent from attending facts giving an inference of showing malafide prosecution instituted with ulterior motive for wrecking vengeance. The unimpeachable document in between the parties are Annexure 9 series, shows strained relationship led to filing of fake and false case after case against these petitioners. In support of his contention he has relied on the judgment of the Hon‟ble Supreme Court in the case of (i) State of Haryana and others Vs. Ch. Bhajan Lal and others, reported in A.I.R. 1992 SC 604, paragraph 108, item 5 and 7 (ii) Inder Mohan Goswami and another Vs. State of Uttaranchal and others, reported in 2008(1) PLJR (SC) 82, paragraphs 14 and 15,
(iii) Bharat Kishore Narayan Saras Vs. The State of Bihar & another, reported in 2011(1) PLJR 755 (iv) Maksud Saiyed Vs. State of Gujarat and others, reported in (2008)5 SCC 668, paragraph 15.
11. Learned counsel for opposite party no.2 has submitted that Patna City Chowk P.S. Case Nos. 155 of 2008 and 156 of 2008 have been lodged at 9.40 A.M. in the morning making the same and similar allegation against either side and as such, it is sure some incidents took place in between parties led to filing of cases and counter cases Patna High Court Cr.M isc. No.16293 of 2011 (12) 14 from both sides. If the First Information Report relating to Patna City Chowk P.S. Case No.156 of 2008 appears to be false allegation then in that circumstances the case arising from Patna City Chowk P.S. Case No.155 of 2008 will be come under the same category. He has further submitted that the basic principle of interference in the criminal proceeding when the complaint petition and the First Information Report does not disclose any offence or the story mentioned are absurd, no reasonable person can believe the story, in that circumstances the court may exercise power under Section 482 of the Code. He has further submitted that he also relied on the judgments that has been relied by the petitioner as absolutely there has been long enmity in between the family members which led to filing of the cases and counter cases and as such the present case lodged vide Patna City Chowk P.S. Case No.156 of 2008 will meet the same fate as of Patna City Chowk P.S. Case no.155 of 2008.
12. On analysis of arguments of parties this Court is of the view, the following proposition of law, have been raised, that the present cases having attended with malafide to wreak vengeance against the petitioners with a view to spit him due to private, personal grudge and long Patna High Court Cr.M isc. No.16293 of 2011 (12) 15 drawn family fued. He has further submitted that the allegation of malicious prosecution is substantiated from the surrounding facts and the history of litigation in between the parties. It is an undisputed fact that they are infested with history of civil litigation concerning ancestral property. Even the father had filed a case against Murli Manohar Jalan for misappropriation of the family property. He has further submitted that the parties are very much in litigating term and they are in habit of filing frivolous cases against them with an intention to coerce them. The unimpeachable document which has been brought on record gives one and only inference that earlier the father of Ravi Jalan and thereafter the present informant adopted the poly of filing the present case exerting pressure to agree to their terms relating to partition of family property. Nutshell the argument that has been led by learned counsel for the petitioner that this Court in exercise of power under Section 482 of the Code should quash the proceeding as has been decided in long line of cases where parameters for interfering with criminal proceeding at the cognizance stage has been set out, i.e. when the Court finds the order of cognizance and continuation thereafter is an abuse of the Patna High Court Cr.M isc. No.16293 of 2011 (12) 16 process of the court and it would be in the interest of justice to quash the proceeding.
13. The inherent power under Section 482 of the Code came under consideration before Hon‟ble Supreme Court and Hon‟ble Court has consistently taken the view, the Court can exercise the power if it is found the facts stated in the F.I.R. or complaint do not constitute any offence, or facts mentioned do constitute basically and dominantly to civil wrong, no criminal offence, the facts mentioned therein are inherently improbable to believe by a reasonable person, the criminal case has been filed out of maliciousness to wreak vengeance, this Court in order to prevent the abuse of process of court and to secure the ends of justice the court under the inherent jurisdiction should exercise the power and interfere with proceeding but this power has to be exercised sparingly, carefully and with circumspection but this power should not be exercised to stifle a legitimate prosecution. The Hon‟ble Supreme Court in the case of R.P. Kapur vs. State of Punjab, reported in A.I.R. 1960 SC 866 has crafted parameters under what circumstances the Court should interfere with the order of cognizance and continuation of proceeding. The court has held that inherent Patna High Court Cr.M isc. No.16293 of 2011 (12) 17 jurisdiction of the High Court can be exercised if criminal proceeding in question is in respect of an offence alleged to have been committed by an accused persons is legally bared against the institution or continuance of such proceeding, the High Court would be justified to quash the proceeding. The first information report or 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 the evidence arises but Court has given a guideline in dealing with the class of cases made distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question of fact. In exercising the inherent jurisdiction the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not as that could be tested by the Magistrate during the trial.
15. The Hon‟ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi, reported in (1976) 3 SCC 1976= A.I.R.1976 SC 1997 has culled out the Patna High Court Cr.M isc. No.16293 of 2011 (12) 18 proposition where the court should exercise the power under inherent jurisdiction in favour of the accused. The Court has held that the Magistrate in such proceedings can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court, to substitute with its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. But the Court has categorized the cases where the High Court under inherent jurisdiction can quash or set aside the criminal proceeding are as follows:
(i) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against Patna High Court Cr.M isc. No.16293 of 2011 (12) 19 the accused;
(ii) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(iii) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(iv) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like."
16. The Hon‟ble Supreme Court again considered the scope and parameter for interference in the criminal proceeding in the case of Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre and others, reported in (1988) 1 SCC 692 where the Court has held that "
"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 utilized 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 Patna High Court Cr.M isc. No.16293 of 2011 (12) 20 may be at a preliminary stage."
17. In another case State of Haryana and others Vs. Ch. Bhajan Lal and others, reported in A.I.R. 1992 SC 604, paragraph 4 where the Hon‟ble Supreme Court has categorized the cases by way of illustration to prevent the abuse of the process of any court or otherwise to secure the ends of justice and held that it would not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
"(i) 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.
(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizance offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155 (2) of the Code.
(iii) 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.
(iv) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizance offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155 (2) Patna High Court Cr.M isc. No.16293 of 2011 (12) 21 of the Code.
(v) Where the allegations made in the F.I.R. 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.
(vi) 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.
(vii) 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. In the case of Iridium India Telecom Limited Vs. Motorola Incorporated and others, reported in (2011) 1 SCC 74 the Hon‟ble Supreme Court has approved the earlier view and the Court has held that the power under inherent jurisdiction should be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. The Court has held that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. The Court has categorized three circumstances under which Patna High Court Cr.M isc. No.16293 of 2011 (12) 22 inherent power to be exercised given under the Code 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. The Court has held that while exercising the power the court would not go into the truth or otherwise of the allegations and appreciate the evidence, if any, available on record. The Court has further held that interference by the High Court in exercise of its jurisdiction under Section 482 of the Code 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 the 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 fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. The Court has further held that refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant Patna High Court Cr.M isc. No.16293 of 2011 (12) 23 sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.
19. The Hon‟ble Supreme Court has again considered the scope and ambit of inherent power in the case of Inder Mohan Goswami (supra) where the Court has considered large number of earlier cases and held that the inherent power can be exercised to do ex debito justitiae to do real and substantial justice for the administration of criminal justice which alone exists to prevent abuse of process of the court. Inherent power under section 482 of the code can be exercised (i) to give effect to an order under the Code (ii) to prevent abuse of process of the court, and (iii) to otherwise secure ends of justice. But the Court has given rider that the said power has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down under this section. If any abuse of the process leading to injustice is brought to the notice of the court, then court would be justified in preventing injustice by invoking inherent power in absence of specific provisions in the statute and the Court has considered the earlier judgment of the Hon‟ble Supreme Court while giving guideline as aforesaid.
Patna High Court Cr.M isc. No.16293 of 2011 (12)24
20. In the recent judgment the Hon‟ble Supreme Court in the case of Amit Kapoor Vs. Ramesh Cahnder and another, reported in (2012)9 SCC460 where the Court has considered by and large all the previous cases and after consideration summarized and catalogued circumstances under which the Court can interfere with the criminal proceeding in the interest of justice and to prevent abuse of the process of the case is as follows:
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 and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently Patna High Court Cr.M isc. No.16293 of 2011 (12) 25 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.Patna High Court Cr.M isc. No.16293 of 2011 (12) 26
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is 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.
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 two ingredients have not been stated or do not appear to be satisfied if Patna High Court Cr.M isc. No.16293 of 2011 (12) 27 there is substantial compliance with the requirements of the offence."
21. Now let us examine the present case as to whether the cases which are under consideration falls under any of the category where this court may exercise inherent power to prevent the abuse of the process of the court or to secure ends of justice.
22. From the Fardbeyan of Patna City Chowk P.S. Case No. 156 of 2008 and Patna City Chowk P.S. case No.155 of 2008 it appears that both the parties are making allegation and counter allegation concerning illegal plucking of cauliflower, Papaya and other vegetables which led altercation between the parties and the allegation has been made from both the parties of using fire arms against each other. Contention of the petitioner that past incident and bitter relationship is the cause for lodging false case against them and these are attending circumstances for deriving to the conclusion of malicious prosecution. It has further been argued that the material that has been brought on record without any dispute gives inference of having inimical term due to family property led to series of civil litigation. One side makes allegation of illegal misappropriation of property Patna High Court Cr.M isc. No.16293 of 2011 (12) 28 whereas counter side also made similar allegation of having occupied the property illegally. On reading of narration of facts mentioned in the Fardbeyan of both F.I.R. it explicitly appears that there was an incident in between the parties which led to filing of cases and counter cases in between them where as allegations have been made of assault and using fire arms. There may be exaggeration in facts but that will be seen at the stage of trial. The enmity is a double- edged sword which cuts both ways. Generally the enmity and that too the old enmity relating to the property dispute generated cases after cases. It will be very difficult to appreciate evidence for coming to definite conclusion that civil dispute, old enmity is the cause of lodging of false cases. Learned counsel for the petitioner has submitted that the facts are inherently improbable and attending facts and circumstances shows the malicious institution of case with the ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. As has been discussed the caution has been provided while exercising power if from unconroverted facts discloses the commission of the offence the court should not embark to appreciate and weigh the evidence mentioned in Patna High Court Cr.M isc. No.16293 of 2011 (12) 29 the F.I.R. or the complaint case that can be looked into at the stage of trial by competent trial court. As has been discussed the inherent power is meant to act exdebito justitiae to do real and substantial justice to prevent abuse of process of the court but the power should be exercised sparingly, carefully and with great caution and such exercise is justified on the tests specially mentioned hereinabove. As has been discussed the court should not exercise the power to stifle to genuine proceeding at the initial stage which may cause injustice to parties.
23. On conspectus of the facts and circumstances of the case mentioned in both the F.I.R., do constitute the criminal offences which are sufficient for forming the opinion of prima facie case against the accused persons. At the same time the facts are not very clear, cannot be deciphered to find out the real story, can be tested at the trial stage by the court below appreciating the materials which would come during the trial. This Court feels that it will not be in the ends of justice to clog the proceeding rather the interference may cause injustice to the parties. With regard to case arising from Patna City Chowk P.S. Case No.79 of 2007 where allegation has been made against the petitioner of Patna High Court Cr.M isc. No.16293 of 2011 (12) 30 trespass intimidation and threat, taking away of important document including computer, extortion of money and also misbehaving with the informant are sufficient for Magistrate for forming an opinion of prima facie case and rightly taken cognizance under the sections mentioned therein. In the trial the veracity of the allegation would be tested but this Court exercising inherent power will not be justified to enter into arena of testing the genuinenity of the allegation which is foreign to exercise the inherent power. This Court feels that it is not proper case where the Court should embark to exercise power of inherent jurisdiction to quash the proceeding. Facts are not sufficient and clear for forming an opinion of maliciousness of prosecution by the informant who happens to be sister-in-law of the petitioner.
24. Accordingly all the three cases are dismissed. However, the parties will be at liberty to raise all the points before the court below at the appropriate stage and the court below without being prejudiced by the order of this Court will decide the case on its own merit in accordance with law.
Vinay/- (Shivaji Pandey, J)