Society and Ors Vs. Siddalingesh  INSC 325 (3 March 2008)
Dr. ARIJIT PASAYAT & AFTAB ALAM CRIMINAL APPEAL NO. 427 OF 2008 (Arising out of SLP (Crl.) No.63 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the learned Single
Judge of the Karnataka High Court dismissing the application filed before it in
terms of Section 482 of the Code of Criminal Procedure, 1973 (in short
'Cr.P.C.'). Prayer in the application before the High Court was for quashing
the proceedings in C.C.No.273/2006 including the complaint on the file of
learned Judicial Magistrate First Class, Gulbarga.
3. Background facts in a nutshell are as under:
Respondent was appointed as a Peon in K.L.E. Society's Women Arts and Commerce
College in the year 1992 of which the appellant no.3 was the Principal at the
relevant point of time. Appellant no.2 was the Secretary at the relevant point
of time and the Society was represented by its Chairman, Board of Management.
He resigned from service on 17.12.2003. The complaint was filed on 13.1.2006
alleging commission of offence punishable under Section 403, 405 and 415 read
with Section 34 of the Indian Penal Code, 1860 (in short 'IPC'). The learned
Judicial Magistrate took cognizance and issued process. The same was questioned
by the appellants. The stand before the High Court was that the complaint was
misconceived, no offence was made out even on indepth scrutiny of the
complaint. In fact, the respondent had filed petition in terms of Section 33
(C) (2) of the Industrial Disputes Act, 1947 (in short 'ID' Act) and also filed
writ petition claiming parity in salary which was disposed of by giving the
direction to consider the respondents' case. In the petition in terms of
Section 33-(C)(2) of the ID Act the respondent had stated that lesser amounts
were paid and signatures for higher amounts were taken. The said petition is
pending. In the writ petition before the High Court there was no mention about
any deduction. It is stated in the complaint that the complainant was given to
understand that certain amounts were being deducted for repayment at the time
of retirement or cessation of his job. In the notice issued on 23.11.2004,
there is no mention about this aspect. It was, therefore, submitted that the
complaint was nothing but an abuse of process of law.
4. The complainant-respondent resisted the stand by stating that the
offences are clearly spelt out.
5. The High Court dismissed the petition holding as follows:
"The respondent lodged a private complaint against the petitioner on
13.1.2006 along with six supporting documents. After perusing the complaint,
the documents and the sworn statement of the respondent, process is issued
against the petitioners for the aforesaid offences. This petition is filed for
quashing the proceedings."
6. Learned counsel for the appellants reiterated the stand taken before the
High Court. On the other hand, respondent also reiterated the stand taken
before the High Court.
7. One thing is clear on reading of High Court's reasoning that the High
Court came to the conclusion that deductions were made without any rhyme and
reason and without any basis. That was not the case of the complainant. On the
other hand, it tried to make out a case that the deduction was made with an
object. That obviously, was the foundation to substantiate claim of
entrustment. On a close reading of the complaint it is clear that the
ingredients of Sections 403, 405 and 415 do not exist. The statement made in
the complaint runs contrary to the averments made in the petition in terms of
Section 33-(C) (2).
8. 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.
9. 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.
where it manifestly appears that there
is a legal bar against the institution or continuance e.g. want of sanction;
where the allegations in the first
information report or complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
where the allegations constitute an
offence, but there is no legal evidence adduced or the evidence adduced clearly
or manifestly fails to prove the charge.
10. 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:
"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
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.
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.
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.
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.
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
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."
11. 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
It is the material collected during the investigation and evidence led in
court which decides the fate of the accused person. The allegations of mala
fides against the informant are of no consequence and cannot by themselves be
the basis for quashing the proceedings. (See: Dhanalakshmi 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, State of Karnataka v. M. Devendrappa and Another (2002
(3) SCC 89) and Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque and Anr. (2005 (1) SCC 122).
12. When the factual scenario is examined in the background of the legal
principles set out above, the inevitable conclusion is that the complaint was
nothing but an abuse of the process of law. We, therefore, allow this appeal
and set aside the proceedings in C.C.No.273/2006 pending before learned Judicial
Magistrate First Class, Gulbarga.
13. We make it clear that we have not expressed any opinion on the merits so
far as the petition under Section 33-(C)(2) of the ID Act is concerned, which
is stated to be pending.