Zandu Pharmaceutical Works Ltd.& Ors Vs. Md Sharaful Haque & Anr  Insc 666
(1 November 2004)
ARIJIT PASAYAT & C.K. THAKKER (Arising out of SLP (Crl.) No. 4870 of 2003) ARIJIT PASAYAT, J.
Appellants call in question legality of the judgment rendered by a learned
Single Judge of the Patna High Court holding that the issuance of summons to
the appellants by learned Judicial Magistrate, 1st Class, Patna in complaint
case no.1613 (C) of 2002 filed by the respondent no.1 is proper.
Factual background in nutshell is as follows:
Respondent no.1 (hereinafter referred to as the 'complainant') filed a
complaint on 9.8.2002 alleging that the appellants had committed offences
punishable under Sections 406 and 409 of the Indian Penal Code, 1860 (in short
the 'IPC'). The date of occurrence was indicated to be between 12.7.1995 to
8.5.2002. The basic allegations in the complaint were that an advertisement was
issued by the appellant no.1 seeking applications for appointment to the post
of Area Manager.
The complainant, who was then working in another concern applied for the
post, was called to the interview on 14.7.1995 and was asked to report at the Bombay
office of the appellant no.1-company on 1.8.1995 for training. After completion
of the training period the complainant was asked to report to the Patna depot.
He was given appointment from 9.9.1995 by letter dated 1.9.1995 wherein it was
indicated that he was appointed as Field Officer and not Area Manager.
According to the respondent, on receipt of the appointment letter the
complainant asked the concerned officials i.e. the other accused persons as to
how he was being appointed as Field Officer when he had appeared at the
interview for the post of Area Manager. He was assured that the letter for the
post of Area Manager will be issued in the first week of April, 1996.
But no such letter came to be issued and he was not appointed as Area
Manager. Grievance was, therefore, made that the accused persons had initially
deceived him by appointing as Field Officer and not as Area Manager, though he
was assured that the appointment letter in that regard will be issued.
Therefore, they were liable to face trial for offences punishable under
Sections 406 and 409 IPC.
Statement of complainant was recorded on 13.2.2002. By order dated 8.10.2002
the learned Judicial Magistrate held that sufficient material existed to
proceed under Section 418 IPC against the appellants and, therefore, summons
were issued for their appearance. An application under Section 482 of the Code
of Criminal Procedure, 1973 (in short the 'Code') was filed before the High
Court challenging legality of the order and summons. It was, inter alia,
submitted that complaint was mis-conceived; the complainant had not come to
Court with clean hands and had suppressed material facts. It was stated that
the complainant had filed a Title Suit no.178/2002 before the learned Sub-
Judge claiming his transfer order was mala fide. The prayer for interim
protection was rejected. Case no.11/99 has been filed before the Labour Court
in which complainant claimed certain payments and compensation.
There was no grievance made of any cheating neither in the civil suit nor in
the matter pending before the Labour Court. The complaint was stale, and in any
event, beyond the prescribed period of limitation as provided in Section 468 of
the Code. It was pointed out that there was no proof of the complainant having
resigned from his previous employment. There was no material to show commission
of any offence even if complaint petition is considered in its entirety. No
foundation for proceeding under Section 418 of the Code was made out. For the
first time in 2002 the alleged breaches were agitated. Stand of the complainant
on the other hand was that finally his claim was rejected on 15.12.2001 and
subsequently his services were terminated on 29.4.2002. That being so, the plea
of complainant having been filed beyond the period of limitation cannot be
maintained. The petition was, as noted above, rejected by the High Court.
In support of the appeal, Mr. R.F. Nariman, learned senior counsel submitted
that the High Court has missed the essential features of the case. In the
complaint petition there is no reference to the letter dated 5.12.2001 which
forms foundation for the High Court's conclusion to hold that the application
was not belated. In the complaint petition a clearly wrong statement was made
that the complainant had never accepted appointment as Field Officer. On the
contrary, in his endorsement below the letter of appointment on 9.9.1995 he has
in his own signature stated as follows:
"I have gone through the terms and conditions stated hereinabove in my
appointment letter and I accept them in toto. I will join your company with
effect from 1st August, 1995. I declare that my date of birth is 1.3.1959 and
in support I submit my documentary evidence." Another interesting feature
is that a letter is purported to have been written on 9.9.1995, the existence
of which is very much in doubt.
The complainant claims to have written that he was unable to send copy of
the joining letter. As noted above, he has clearly done so.
Therefore, complainant has fabricated documents to suit his own purpose. In
the matter pending before the Labour Court which was filed on 6.7.1999 also the
complainant has not made any reference to the so called illegality in his
appointment as Field Officer, and on the other hand he has clearly stated that
he was employed with the company and posted as Field Officer. Similar is the
position in the suit filed in 2002, challenging the order of transfer. There is
no explanation for the silence between 1995 to 2001. Therefore, it is submitted
that the High Court was not justified in rejecting the application. Further
offence in terms of Section 418 IPC is clearly not made out.
Therefore, the learned Magistrate was not justified in directing issuance of
In response, learned senior counsel for complainant-respondent no.1
submitted that based on the assurance held out that he will be appointed as
Area Manager, the complainant had resigned from the job he was holding on the
date of joining. He raised his protest when he was appointed as Field Officer.
He continuously made grievances and finally when his claim was rejected by
letter dated 5.12.2001, he filed a complaint and, therefore, the same is within
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 alicui
concedit, concedere videtur et id sine quo res ipsae esse non potest"
(when the law gives a person anything it gives him that without which it cannot
exist). While exercising 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 abuse. It would be an abuse of process of the court to allow any action
which would result in injustice and prevent promotion of justice. In exercise
of the powers court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of justice. When
no offence is disclosed by the 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.
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
(iii) where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to prove
In dealing with the last case, 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 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) 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:
"(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
(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
(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
(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.
Dhanalakshmi v. 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 (1999 (3) SCC 259.
The above position was recently highlighted in State of Karnataka v. M.
Devendrappa and Another (2002 (3) SCC 89).
The factual position as highlighted above clearly goes to show that the
complainant had not come to Court with clean hands. There was no explanation
whatsoever for the inaction between 1995 and 2001. The High Court seems to have
been swayed by the fact that the appellants have rejected claim of the
complainant on 5.12.2001. It failed to notice that the communication dated
5.12.2001 was in response to the letter of the complainant dated 24.11.2001.
Section 468 of the Code deals with delay in taking cognizance after lapse of
the period of limitation. It reads as follows:
"468. BAR TO TAKING COGNIZANCE AFTER LAPSE OF THE PERIOD OF LIMITATION:
(1) Except as otherwise provided elsewhere in this Code, no Court shall take
cognizance of an offence of the category specified in sub-section (2), after
the expiry of the period of limitation.
(2) The period of limitation shall be - (a) six months, if the offence is
punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation
to offences which may be tried together, shall be determined with reference to
the offence which is punishable with the more severe punishment or, as the case
may be, the most severe punishment." The learned Magistrate has issued
process in respect of offence under Section 418 IPC. The punishment provided
for said offence is imprisonment for three years. The period of limitation in
terms of Section 468(2)(c) is 3 years. That being so, the Court could not have
taken cognizance of the offence. Section 473 of the Code provides for extension
of period in certain cases. This power can be exercised only when the Court is
satisfied on the facts and in the circumstances of the case that the delay has
been properly explained or that it is necessary to do so in the interest of
justice. Order of learned Magistrate does not even refer to either Section 468
or Section 473 of the Code. High Court clearly erred in holding that the
complaint was not hit by limitation. As noted above, there was not even a
reference that the letter dated 5.12.2001 was in response to the letter of
complainant dated 24.11.2001. The factual position clearly shows that the
complaint was nothing but a sheer abuse of the process of law and this is a
case where the power under Section 482 should have been exercised. The High
Court unfortunately did not take note of the guiding principles as laid down in
Bhajan Singh's case (supra), thereby rendering the judgment indefensible. The
judgment of the High Court is set aside, the proceedings initiated by the
complaint lodged are quashed. The appeal is allowed.