Monica Kumar & ANR. Vs. State of U. P. & Ors.  INSC 991 (27 May 2008)
S. B. Sinha & Lokeshwar Singh Panta
[Arising out of S.L.P. (Crl.) No.5593 of 2006] REPORTABLE Lokeshwar Singh
1. Leave granted.
2. Challenge in this appeal is to the final judgment and order dated
24.08.2006 passed by the High Court of Judicature at Allahabad whereby and
whereunder the High Court has dismissed Criminal Miscellaneous Applications
bearing Nos. 7792 of 2006 and 7791 of 2006 filed by the appellants under
Section 482 of the Code of Criminal Procedure [for short Cr.P.C.] in
Case Crime No. 412 of 2005 under Sections 452, 323, 504, 506 and 427of the
Indian Penal Code [for short the IPC] and in Case Crime No. 21 of
2006 under Sections 452, 323, 336, 504, 506, 420 IPC respectively registered
against them at Police Station, Vijay Nagar, District Ghaziabad and seeking for
entrustment of further investigation of the aforesaid cases to the Central
Bureau of Investigation [for short the CBI].
3. This case would reveal a chequered history of legal battle being fought
by the appellants the students of Santosh Medical College on one hand and the
authorities of the College on the other hand.
4. Dr. Narendra Kumar, the father of the appellants, is presently working as
Professor/Medical Director of Neonatal Intensive Care Unit [NICU] and also
performing medical practice at 2917, Middleboro Place, Modesto, California.
Both the appellants were born in California and completed their schooling in USA.
They decided to get admission in MBBS course for the academic session 1996-97
in Santosh Medical College, Ghaziabad [for short College] against NRI
quota after remitting US $50,000 and US $49,700 respectively towards capitation
fees and additional hostel fees of RS. 75,000 and Rs. 45,000 and security
deposits for one year. That apart, the College took a loan of Rs. 25 lakhs on
interest @ 11.5% p.a.
from the father of the appellants and its payment was assured by a
handwritten slip. The disputes and differences arose after the father of the
appellants demanded repayment of the loan from Dr. P. Mahalingam the second
respondent herein, Chairman & Managing Director/Trustee of Maharaji
Educational Trust and Santosh Medical College and Hospital, Pratap Vihar, Vijay
Nagar, Ghaziabad. In April 2001, the matter was reported to the Additional
District Magistrate, Ghaziabad, for taking appropriate steps to get the loan
amount refunded. Dr. P. Mahalingam the second respondent in his letter dated
9.4.2001 acknowledged the liability and had also assured to refund the entire
loan amount. It was alleged that the second respondent with vindictive attitude
started harassing the appellants and in the result declared in July 2000, Dr.
Monica Kumar the first appellant was got failed in both theory papers of
Pharmacology and she was not allowed to appear in two subsequent supplementary
examinations as well as in Final Professional MBBS Part-I Examination.
5. The first appellant filed a Writ Petition No. 9150 of 2001 in the High
Court wherein vide order dated 14.3.2001, the second respondent was directed to
permit the first appellant to appear in the final Professional MBBS Part-I
Examination. In compliance of the High Courts order, the first appellant
was permitted to appear in the examination, but her result was deliberately
withheld for an oblique motive which compelled the first appellant to approach
the High Court of Allahabad by way of Miscellaneous Application in the pending
Writ Petition No. 9150/2001 for issuing necessary directions for declaration of
her result. The High Court vide order dated 19.9.2001 directed the College
authorities to declare the results of MBBS Final Professional Part-I
Examination, 2001 and the result of the scrutiny of Pharmacology of Second
Professional Examination, 2000 and further to permit the first appellant to
appear in Final MBBS Part-II Examination and to declare the result of the said
examination as well. By Orders dated 7.01.2002/16.01.2002, the High Court
directed the college authorities to produce answer books of Pharmacology of the
first appellant. On 4.03.2002, the High Court got the answer books of the first
appellant re-examined by the Head of Department of Pharmacology of Motilal Nehru
Medical College, Allahabad in the court itself. On re-examination of the
papers, the first appellant secured good marks in both the papers and
accordingly, the college authorities were directed to declare her results
forthwith. It appears that the orders/directions of the High Court were not
complied with which gave rise to the first appellant to file contempt of court
proceedings against the college authorities. The High Court vide order dated
9.4.2002 directed the College authorities to be present personally in the Court
but in the meantime on 22.04.2002 the result was declared and for no valid
reasons, the first appellant was declared failed in Surgery Practical
Examination. The first appellant left with no other remedy, but to approach the
High Court by means of another writ petition. The High Court directed the
second respondent to produce before it the tabulation chart of Surgery
Practical Examination of all the students including the first appellant. The
High Court on 12.11.2002 having noticed serious allegations of mala fide,
restrained Dr. P. Mahalingam the second respondent from interfering in and
conducting examination of the first appellant and further directed that the
practical examination of the first appellant be got conducted through Agra
Medical College in which the first appellant was declared pass with 70% marks.
6. The appellants alleged that having miserably failed in all attempts to
ruin the career of the first appellant, Dr.
Mahalingam the second respondent on 04.04.2003 got a false and frivolous
report lodged under Sections 504 and 506 IPC through his yes-man and associate Dr.
Anil Tomar against all the members of the appellants family whereupon Case
Crime No. 286 of 2003 was registered against them.
Both the appellants and their parents filed Writ Petition No.
1923 of 2003 seeking for quashing the said criminal case and the High Court
vide order dated 17.4.2003, stayed the arrest of the appellants and their
parents during the investigation of the above-said FIR. The Police rushed to
file charge sheet without making any fair and effective investigation against
which Criminal Miscellaneous Application No. 8542 of 2003 under Section 482
Cr.P.C. was filed by the parents of the appellants in the High Court for
quashing the charge sheet and the High Court vide its order stayed further proceedings
pending before the trial court.
7. On a complaint made by the father of the appellants and on intervention
of the District Magistrate and S.S.P., Ghaziabad, Dr. P. Mahalingam the second
respondent on 28.02.2003 allegedly, gave 5 cheques for Rs. 5 lakhs each against
the loan amount and two demand drafts of Rs. 2.5 lacs each on account of
payment of the accrued interest. It was stated that one cheque was dishonoured
on 18.10.2003 and the father of appellants preferred a Criminal Case No. 7272
of 2003 against Dr. Mahalingam the second respondent under Section 138 of the
Negotiable Instruments Act in the Court of Additional Chief Judicial
Magistrate, Ghaziabad wherein by order dated 24.1.2004 the second respondent
and others were summoned as accused persons. On filing of the above criminal
case by the father of the appellants, the second respondent got infuriated and
became more and more vindictive against the appellants and their family
8. The appellants then stated that the tape recorded conversation held
between the father of the appellants and Dr.
M.K. Shrivastava, Principal of the College, would clearly reveal that Dr. P.
Mahalingam the second respondent is the main person instrumental in
victimisation and harassing of the appellants. On 2.5.2004 and 2.6.2004 the
appellants were allegedly assaulted mercilessly by the second respondent, Anil
Somania, Station Officer, P.S. Vijay Nagar and their drivers.
The first appellant was molested and she had been threatened to be
kidnapped, raped and even murdered whereas the Dr.
Manish Kumar- the second appellant, brother of the first appellant was
assaulted with kicks, fists, shoes and sticks.
They got themselves medically examined at the Government M.M.G. Hospital,
Ghaziabad and on refusal to register their FIR by the Police of Police Station,
Ghaziabad, the appellants proceeded to file an application under Section 156(3)
before Chief Judicial Magistrate, Ghaziabad seeking direction to the police
to register the FIR and hold proper investigation in the case. Though the said
application was initially rejected by the Chief Judicial Magistrate, but in
view of the order of the IIIrd Additional District and Sessions Judge,
Ghaziabad, the Chief Judicial Magistrate by order dated 3.10.2005 directed the
concerned Police Station Officer to register the case against the culprits.
9. Aggrieved thereby, Dr. P. Mahalingam the second respondent filed a
Criminal Writ Petition before the High Court which was dismissed vide order
dated 9.11.2005. In pursuance of the order of the Chief Judicial Magistrate
dated 03.10.2005 and subsequent order of the High Court dated 9.11.2005, FIR at
the instance of Dr. Monica bearing Crime No. 425 of 2005 was registered on
28.11.2005 under Sections 147/323/342/352/354/427/504 and 506 IPC at the Police
Station against Dr. P. Mahalingam and other persons named in the complaint.
10. The appellants stated that as citizens of the United States of America,
they sent a representation to the President of USA whereupon White House
responded and sent a letter dated August 16th 2004 informing the appellants
that White House had decided to send the petition to the Department of State to
address the grievances of the appellants. Further, by letter dated August 30,
2004 the appellants were also informed about the steps having been taken by the
11. The appellants also stated that even on issuance of satisfactory
completion certificate of internship to the first appellant duly signed by all
the Professors and Heads of Departments, Medical Officers and Dean of Faculty
on 18/19.3.2004, the Principal of the College who was simply required to
countersign internship completion certificate, deliberately for no valid reason
entered the word unsatisfactory by antedating it as 16.01.2004 at the
behest of Dr. P. Mahalingam the second respondent as a result thereof the
first appellant could not get the MBBS Degree for getting herself enrolled with
Medical Council of India nor she could appear in any Post Graduation
Examination. Aggrieved by the action of the Principal of the College, the first
appellant preferred Civil Writ Petition No. 19069 of 2004 in the High Court of
Allahabad and the High Court vide its order dated 11.01.2005, recorded that the
certificate issued by the competent authorities was deliberately antedated. The
learned single Judge of the High Court by order dated 17.2.2005 disposed of the
said writ petition as counsel for Dr. P.
Mahalingam the second respondent produced a fresh certificate reporting
therein that the first appellant had completed her internship satisfactorily
and therefore was eligible for MBBS Degree. The first appellant being aggrieved
against the order by which other reliefs prayed for in the writ petition were
declined, filed a Special Appeal in the High Court which was allowed on
31.3.2005, directing the authorities concerned to issue other required
certificates, i.e. character certificate, pass certificate and attempt
certificate to the first appellant.
12. In compliance to the order of the High Court Dr. P.
Mahalingam the second respondent issued character certificate, pass
certificate and attempt certificate to the fist appellant but with wrong dates
and incomplete particulars.
The first appellant again was forced to file Contempt Petition No. 4057 of
2005 against the second respondent praying for taking legal proceedings against
him for violation of the courts order. The High Court on 23.12.2005
recorded the following order:- This court without going into the
controversy is not issuing any notice on the contempt application at this stage
and disposes of this application with a direction to the opposite party to
consider the request made by the applicant in her representation within three
weeks from the date of the production of a certified copy of this order. If the
grievance of the applicant is found to be genuine, in that event, fresh
certificates shall be issued immediately.
13. The appellants stated that Dr. P. Mahalingam the second respondent
found a good ally in Anil Somania the then Station Officer of P.S. Vijay Nagar
whose daughter was also studying in the same College and thus was able to
intensify the harassment of the appellants and got initiated criminal
proceedings against them under Sections 107/116 Cr.P.C.
This time again on being approached by the appellants, the High Court by
order dated 25.11.2005 stayed those proceedings.
14. Having failed in all earlier attempts to harm the careers of the
appellants, the second respondent allegedly in collusion with Anil Somani, SHO,
instigated Dr. I.M. Sharma, Warden of Girls Hostel of the College the third
respondent herein and got a false and frivolous FIR No. 297/2005 (Case Crime
412/2005) dated 5.10.2005 registered against the appellants under Section
452/323/504 and 506 IPC at P.S. Vijay Nagar.
The appellants filed Criminal Miscellaneous Petition No. 11192 of 2005 in
the High Court and the High Court on 7.11.2005 passed the following order:-
Having regard to the facts and circumstances of the case, the arrest of
the petitioners for the offences indicate above is stayed till the submission
of the report on the following conditions:-
That the petitioners will not be arrested in respect of the said crime
number during the pendency of the investigation provided they cooperate with
The stay of arrest will operate only
if certified copy of this order along with one self attested copy of the writ
petition is served upon the investigation officer within fifteen days from
The stay of arrest will cease to
operate if it is decided to submit a charge sheet after investigation.
Because the complainant has not been
head at this stage, therefore, it will be open to the complainant or the
investigation officer who has not been given opportunity to file counter
affidavit or any other party aggrieved to apply in this writ petition for
recall/modification of this order, if any misstatement is found in the material
facts stated in the writ petition or other legally valid ground which may be
available to the party so applying.
The investigating officer will make
all possible efforts to conclude the investigation within three months of the
date on which a certified copy of this order is served upon him.
The SSP Ghaziabad is directed to hand over investigation of this case to a
Gazetted Officer not below to the rank of Deputy Superintendent of Police.
15. Leaving no stone unturned to fulfill his vengeance and revengeful
attitude against the appellants, the second respondent got one more frivolous
FIR bearing Crime No. 21 of 2006 dated 14.1.2006 registered against them under
Sections 452/323/336/504/506 and 427 IPC at P.S. Vijay Nagar at the behest of
Rajendra Kuntal - Head Security Guard of Dr. P.
Mahalingam. The complaint of Rajendra Kuntal was sent through Ram Murti Mani
Kandan, Personal Manager of the second respondent, to the Police Station. The
appellants were arrested on 15.01.2006 from their house and lodged in jail.
They were released on bail by the learned Sessions Judge on 31.01.2006.
16. Owing to constant threats and victimisation by Dr. P.
Mahalingam in collusion with the local police, the appellants filed
Miscellaneous Writ Petition No. 1947 of 2006 praying for CBI investigation into
the matter. On 22.07.2006, the High Court passed the following order:-
Considering the facts and circumstances of the case, we are of the view
that the correct position of the investigation of the cases be also brought on
record. Therefore, learned AGA is directed to file counter affidavit annexing
the copies of the statement of the prosecution witnesses recorded under Section
161 Cr.P.C. in the cases referred to above.
The case be listed on 27.3.2006.
The Senior Superintendent of Police, Ghaziabad shall look into the
grievances of the petitioners regarding the ill-
treatment/humiliation/harassment etc. by the local police and the
respondents/accused concerned and ensure adequate security to them and their
family members in all respects and submit the compliance report on or before
10th March, 2006.
Let a copy of this order be furnished to the learned AGA free of cost by
tomorrow for intimating the authority concerned.
17. The appellants alleged that Sub-Inspector J.K. Gangwar ought not to have
conducted the investigation of the cases, as in the earlier proceedings, the
High Court made observations that he was under the influence of SHO Anil
Gangwar without proper and fair investigation hurriedly prepared and filed
charge sheet in the trial court on the basis of which the learned Chief
Judicial Magistrate proceeded to take cognizance of the offences against the
18. The appellants then preferred two separate petitions referred to above
under Section 482 Cr.P.C. for quashing of the said FIRs and entrusting further
investigation of the cases to CBI. The High Court by impugned order dated
24.08.2006 dismissed the petition. Hence, the appellants are before us in this
joint appeal by way of special leave.
19. We have heard the learned counsel for the parties and meticulously
examined the entire material on record.
20. Shri Harish N. Salve, learned senior counsel appearing for the
appellants, assailed the judgment of the High Court inter alia contending that
the First Information Reports and further proceedings initiated thereto by the
trial court against the appellants are vitiated on the following grounds:- (i)
that the allegations made in the FIRs and evidence collected during
investigation on their face are so absurd and inherently improbable that no
prudent person can ever arrive at a conclusion that there are sufficient
grounds for proceeding against the appellants-students of MBBS course for the
commission of the alleged offences registered at the instance of the employees
of the College;
(ii) that the appellants case is fully covered by the principles laid
down by this Court in the case of State of Haryana v. Bhajanlal (1995) Suppl.
SCC 335 and the High Court has misapplied the ratio of the said case in the
facts of the present case;
(iii) that the High Court has failed to appreciate that there was an
apparent nexus between Dr.
P. Mahalingam the second respondent and two informers, who in collusion with
the local police, have launched two false and vexatious criminal cases against
the appellants in continuation of series of acts of victimization and
harassment first to spoil their future career;
(iv) the High Court has failed to appreciate that the material on record
leaves no room of doubt that the Criminal Cases were initiated at the instance
of Dr. P. Mahalingam the second respondent due to mala fide intention,
vengeance and animosity in continuation of his designs to misappropriate the
loan amount advanced to him by the father of the appellant for establishment of
(v) that the High Court has failed to appreciate that Dr. P. Mahalingam who
happens to be the Chairman and Sole Trustee of the Maharaj Ji Educational Trust
which is running the Santosh Medical College for imparting medical education at
the Under Graduate Level, which is one of the noblest professional qualification
that one can impart on human beings, has been indulging in acts of omissions
and commissions which are wholly unexpected of him. After having failed in all
his repeated attempts to spoil the career of the appellants, the second
respondent adopted a vindictive attitude towards the appellants and the facts
of the present case clearly establish that the allegations made in the
complaints are not only false but are the result of mala fides of Dr.
21. In opposition, Mr. Amarendra Sharan, learned Additional Solicitor
General appearing on behalf of CBI the fourth respondent, urged before us that
acceptability of mala fides against second respondent is a matter of trial and
that it is not a case where charge sheet prima facie does not disclose
commission of offences and that the defence pleaded by the appellants, is in
fact, has to be considered by the courts below during the trial of the cases
pending against them.
22. Shri Shail Kumar Dwivedi, learned counsel appearing on behalf of the State
of U.P., supported the contention of the learned counsel for CBI and submitted
that since the investigation of the cases having been completed, charge sheets
filed and charges framed by the trial court against the appellants, therefore,
now the trial is completely in the domain of the trial court and certainly it
is not a proper stage of quashing the FIRs and charge sheets filed under
Section 173 Cr.P.C. In support, reliance is placed on Som Mittal v.
Government of Karnataka (2008) 3 SCC 753; State of H.P. v. Prithi Chand (1996) 2 SCC 37 and State of Orissa & Anr. v. Saroj Kumar Sahoo (2005) 13 SCC 540 to contend that the inherent power of
the High Court for quashing criminal proceedings should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases and
that the present case does not fall in that category.
23. Shri K.K. Venugopal, learned senior counsel appearing on behalf of Dr.
P. Mahalingam the second respondent, vehemently contended that the appellants
have concocted contradictory stories in different proceedings regarding their
alleged harassment by the College authorities inasmuch as they initially took
the plea that they were allegedly being harassed by Dr. M.K. Srivastava Principal
of the College because he wanted the second appellant to marry his daughter but
in subsequent proceedings the appellants changed their earlier stand and took
up another false plea that they were being harassed at the behest of the second
respondent from whom their father demanded the return of loan amount of Rs. 25
lakhs. He submitted that it was proved on record that loan amount of Rs. 25
lakhs has already been paid to the father of the appellants by way of cheques
and bank drafts way back in the year 2003 itself. Mr. Venugopal has brought to
our notice the relevant paragraphs of counter affidavit filed by the second
respondent in opposition to the present appeal in which the allegations of the
appellants that they were intentionally got failed in the examinations at the
instance of the second respondent has been categorically denied. The second
respondent stated that the first appellant had failed repeatedly due to her
poor performance in the examination and definitely not due to any amount of
harassment or acts of victimization by him as alleged by the first appellant,
whereas the second appellant could successfully complete his MBBS Course and,
accordingly, all certificates like Internship Certificate, Passing Certificate
and Character Certificate were issued to him on successful completion of the
course. He submitted that the record of the College would reveal that despite a
series of complaints regarding the act of indiscipline of the first appellant,
he always took a lenient view so that she should not suffer in her studies and
he has always extended full support to every student including the first
appellant. He submitted that the FIRs were registered against the appellants by
the employees of the College in their personal capacity for the commission of
the alleged offences by them and their allegations that the said cases were
registered at his behest, are absolutely false, baseless and unfounded. He then
submitted that the High Court in exercise of its jurisdiction under Section 482
has found prima facie case against the appellants and recorded well-reasoned
order which is based upon proper appreciation of the settled proposition of
law, this Court, therefore, shall restrain itself from interfering with the
impugned order of the High Court in exercise of jurisdiction under Article 136
of the Constitution of India.
24. Shri P.P. Rao, learned senior counsel appearing for Dr.
M.K. Shrivastava Principal of the College and Dr. I.M.
Sharma Warden of Girls Hostel (an informant of Case Crime No. 412 of 2005),
contended that not only the police found prima facie case but the court below
also found sufficient material against the appellants on the basis of which
cognizance of the offences alleged against them in Case Crime No. 412 of 2005
was taken and the trial court now has framed charges against the appellants. He
next contended that the mere fact that senior police officers daughter was
a student of the respondent-College by itself would not lead to the conclusion
that investigation of the cases registered against the appellants was tainted
or not being conducted properly and fairly by the Investigation Officer. He
supported the order of the High Court which, according to him, is valid and
legal both on facts and law.
25. Having heard the learned counsel for the parties and having noticed and
considered the proposition of law laid down by this Court in a number of
decisions, the learned Single Judge of the High Court observed:
The contents of the report registered as Case Crime No. 412 of 2005
under Sections, 452, 323, 504, 506 427 IPC at Police Station Vijay Nagar,
Ghaziabad, transpires that on 5.10.2005 at about 6 p.m. Dr. Monica Kumar and
Dr. Manish Kumar entered in the house of Dr. Indra Mohini Sharma, H. No. 14,
Sector-12, Pratap Vihar, Ghaziabad with knife and brick bats. They started
hurling abuses to her saying that she is much close to Dr.
P. Mahalingam. She was also slapped and was also threatened that her
children would be kidnapped and killed. On her cries, security men namely,
Rajveer, Prempal and some of the students of the College, came for her rescue.
Some of the household goods were also damaged by them. The victim (Dr. Indra
Mohini Sharma) who is teacher in Santosh Medical College under Section 161 of
the Code supported the F.I.R.
version and mentioned that both the accused threatened and slapped her. She
was rescued by the security men Rajveer and Prem Pal. Police also recorded
statement of these two security men also of Gaurav Pandey, student of the
College who reiterated about the incident. For the other incident dated
14.1.2006 report was lodged as Case Crime No.21 of 2006 under Sections 452,
323, 336, 504, 506, 420 IPC at Police Station Vijay Nagar, Ghaziabad, against
Dr. Monica Kumar and Dr. Manish Kumar as they are said to have beaten the security
man Rajendra Kuntal and also damaged the College properties. The investigating
officer has recorded the statement of Rajendra Kuntal and other security
personnel namely Prempal and Manoj Kumar. Both the witnesses have supported the
It may be mentioned that in exercise of the proceedings under Section 482 of
the Code, this Court has to prima facie ascertain about the existence of the
sufficient ground for proceeding against the accused. For limited purpose the
court can evaluate the material and documents on record but it cannot
appreciate the evidence so as to access the credibility of the statement of the
witnesses recorded in the course of investigation.
Further it is not required to appreciate the evidence to find out whether
the materials produced are sufficient or not for convicting the accused. In the
case of Chand Dhawan v.
Jawahar Lal (1992) 3 SCC 317 it was observed by the Apex Court that when the
material relied upon by a party are required to be proved, no inference can be
drawn on the basis of materials to conclude the FIR/complaint version to be
The scope of exercise of the power under Section 482 of the Code and
categories of the cases where High Court may exercise its power under it
relating to cognizable offences to prevent the abuse of the process of court or
otherwise to secure the ends of justice were set in detail by the Apex Court in
the case of [State of Haryana v. Ch. Bhajan Lal 1995 Suppl. I SCC 335] they have
been enumerated as under:-
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.
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 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
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.
Here allegations made in the report and the evidence so collected in the
course of investigation construe a cognizable offence, it would not fall in any
category of the case enumerated above, call for the exercise of extra ordinary
powers or inherent power quashing the charge sheet submitted in the above-noted
26. The special leave petition came up before this Court on 20.11.2006 on
which date it was ordered:
On an oral prayer made by the learned counsel, issue notice to Union of
India confined to the question as to whether the investigation be done by the
C.B.I. in the event the Court finds it necessary to do so.
The Court below may frame charges wherefor the petitioners shall make them
available on the next date fixed. Thereafter, further proceedings shall remain
Four weeks time is granted for filing counter affidavit. Two weeks
time, thereafter, is granted for filing rejoinder.
27. The parties have exchanged their counter affidavits and rejoinders.
Indisputably, there is no quarrel with the well- settled principles of law that
while exercising powers under Section 482 Cr.P.C., the High Court does not
function as a court of appeal or revision. Inherent jurisdiction under the
Section though has to be exercised sparingly, carefully and with caution and
only when such exercise is justified by the tests specifically laid in the
Section itself. It is to be exercised ex debito justitiae to do real and
substantial justice for the administration of which courts exist. When the
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 allegation are accepted in toto.
28. In R.P. Kapur v. State of Punjab (1960) 3 SCR 388, this Court summarises
some categories of cases in which 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 their 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.
29. The scope of exercise of power under Section 482 Cr.P.C.
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 which has been dealt with by the High Court in State of Haryana v.
Bhajan Lal (1992) 2 Suppl. I SCC 335. In the said case, a note of caution to
the effect was, however, added that the power should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases. The
illustrative categories indicated by this Court are earlier extracted in the
order of the High Court.
30. We may reiterate and emphasise that the powers possessed by the High
Court under Section 482 Cr.P.C. 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 jurisdiction of
quashing the proceeding at any stage. [See Janata Dal v.
H.S. Chowdhury (1992) 4 SCC 305; Raghubir Saran Dr.
v. State of Bihar 1964 (2) SCR 336; Kurukshetra University v. State of
Haryana (1977) 4 SCC 451; and Zhandu Pharmaceuticals Works Limited and Others
Mohd. Sharaful Haque and Another 2005 (1) SCC 122].
31. In fact, the question of mala fides in a case like the present is not at
all relevant. If the complaint which is made is correct and offence has been
committed which will have to be established in a court of law, it is of no
significance that the complainant is a person who is inimical or that he is
guilty of mala fides. If the ingredients which establish the commission of the
offence or misconduct exist then, the prosecution cannot fail merely because
there was an animus of the complainant or the prosecution against the accused.
Allegations of mala fides may be relevant while judging the correctness of
the allegations or while examining the evidence.
But the mere fact that the complainant is guilty of mala fides, would be no
ground for quashing the proceedings. [See State of Maharashtra v. Ishwar Piraji
Kalpatri (1996) 1 SCC 542; Zhandu Pharmaceuticals Works Limited and Others v.
Mohd. Sharaful Haque and Another 2005 (1) SCC 122;
State of Bihar & Anr. v. J.A.C. Saldanah (1980) 1 SCC 544; State of
Orissa v. Saroj Kumar Sahoo 2005 (13) SCC 540]. There may be some exceptions to
the said rule but we are not concerned with such a case.
32. This Court in the latest decision has held that where investigation was
completed, charge sheet had been filed and charges are framed, the High Court
should not ordinarily embark upon an enquiry as to the reliability of offences
to sustain the allegations made in the complaint which is the function of the
trial court. [see Som Mittal v. Government of Karnataka (2008) 2 SCC 753]
33. Having given our careful consideration to the submissions made by the
learned counsel for the parties and in the backdrop of the facts and in the
light of principles of law highlighted above, we have examined the entire
material placed on record by the parties in the case on hand.
Indisputably, both the appellants took admission in the MBBS course in the
session 1996-97 in Santosh Medical College and Hospital under the NRI quota
against handsome payments of US $50,000 and US$49,700 each in addition to
hostel charges and security deposit, i.e. Rs. 75,000/- and Rs. 45,000/-
respectively for one year. In April 2000, Dr. P. Mahalingam the second
respondent, Chairman/Managing Director of the Medical College took a loan of
Rs. 25 lakhs on interest at the rate of 11.5 % from Dr. Narendra Kumar, father
of the appellants. As noticed in the earlier part of this judgment, a series of
civil writ petitions and criminal proceedings besides contempt proceedings were
initiated by the appellants in which allegations of mala fides, acts of
victimization and physical and mental harassment were alleged against the
second respondent in his personal capacity and also as a Chairman/Managing
Director of the College Trust. The appellants filed application under Section
before the Chief Judicial Magistrate on the basis of which case under
Section 347/502/506/342/352/ 354 and 427 IPC has been registered against the
defaulters. The second respondent is said to have challenged the order of the
Magistrate but he could not succeed. The appellants are facing trial of Case
Crime No. 412/2005 lodged against them by Dr. Indra Mohini Sharma, third
respondent, under Sections 458/323/504/506 IPC and Case Crime No. 21/2006
registered on 14.01.2006 in Police Station Vijay Nagar at the behest of
Rajender Kuntal- respondent, Security Guard of the institution, under Sections
452/323/336/504/506 and 427 IPC. The above-stated cases pertained to the period
when the appellants were students and studying MBBS Course in the College. The
trial of the said cases at present is at initial stage and further proceedings
thereof are stayed by this Court. The record would reveal that during the
investigation of Case Crime No. 412/2005 for offences punishable under Sections
453, 323, 504, 506 IPC, the appellants were arrested by the police on
15.01.2006 from their house and were lodged in jail. Their bail applications
were adjourned four times by the learned Magistrate, who had called for case
diary and medical reports, which the prosecution did not produce. It was only
on the adjourned date, i.e. 18.01.2006 when written medical report of doctor
from Batra Hospital, New Delhi, was filed before the learned Magistrate
reporting some injuries have received by complainant Rajender Kuntal and on the
basis of the said medical report, Section 308 IPC came to be added in the said
Crime Case. The learned Magistrate rejected the bail application of the second
appellant in that case. The second appellant filed a bail application before
the learned Sessions Judge on 21.01.2006 which was adjourned to 31.01.2006 on
that date the second appellant could be released on bail. The first
respondent-State of U.P. has filed with their affidavit translated true copies
of apology letters dated 13.04.2004 and 02.05.2004 respectively said to have
been written by the appellants and addressed to the SHO, Vijay Nagar P.S.,
Ghaziabad, the contents whereof read as under:- Tomorrow morning 9am,
myself and my daughter Monica Kumar and Manish Kumar will go to SP City office.
So we wont go to the Mess of Santosh Medica College and we wont abuse
We apologize for the quarrel happened today evening in the Mess with Mr.
Sd/- Monica Kumar Sd/- Manish Kumar Sd/- Savitri K-8 Sector 12, Pratap Vihar
Dt. 13.04.04 Sd/- G. Krishnamoorthy Drt. 13.04.04 Sd/- R. Manikandan Dt.
13.04.04 SO, Vijay Nagar Police Station, Ghaziabad.
From today onwards we wont stand in front of the police car. Neither
open our lights.
I am sorry for misconduct today.
Sd/- Monica Kumar Dt. 2-5-2004 Sd/- Manish Kumar Dt. 2-5-2004
34. The entire details of the facts of the present case do indicate that the
appellants during their study of MBBS Course had some problems with the second
respondent; some staff of the College and the then SHO of P.S. Vijay Nagar,
whose daughter was also studying in the same College. The record would reveal
that both the appellants being NRI candidates have undergone physical and
mental agony and torture during their students career in pursuing the MBBS
course. They had spent most of their precious time in litigation in the courts
fighting for their genuine and legitimate claims. They may be lacking in some
indiscipline activities in the College for which they have been facing criminal
proceedings for the past about 3 years. Looking to the entire backdrop of the
peculiar facts of countless incidents having faced by the appellants during
their primary life as MBBS students and the nature of the offences alleged
against them in the above mentioned crime cases lodged by Mrs. Indra Mohini
Sharma and Rajender Kuntal in Police Station Vijay Nagar, Ghaziabad and
allegations and counter allegations in various complaints made by the parties
against each other and coupled with the tenor and contents of the apology
tendered by the appellants, we are of the view that it is a fit case where we
should exercise our jurisdiction under Article 142 of the Constitution of
India. We are conscious of the well- settled law laid down by this Court in the
above referred decisions and many more that in case of persons against whom
prima facie case is made out and charge sheet is filed in the competent court,
it is that court which will then deal with the case on merits in accordance
with law and the High Court should not except in extraordinary circumstances
exercise its jurisdiction under Section 482 Cr.P.C. so as to quash the
prosecution proceedings after they have been lodged.
35. Under Article 142 of the Constitution this Court in exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any 'cause' or 'matter' pending before it. The expression
"cause" or "matter" would include any proceeding pending in
court and it would cover almost every kind of proceeding in court including
civil or criminal. Though there is no provision like Section 482 of the
Criminal Procedure Code conferring express power on the Supreme Court to quash
or set aside any criminal proceedings pending before a criminal court to
prevent abuse of process of the court, but the inherent power of this Court
under Article 142 coupled with the plenary and residuary powers under Articles
32 and 136 embraces power to quash criminal proceedings pending before any
court to do complete justice in the matter before this Court. If the court is
satisfied that the proceedings in a criminal case are being utilised for
oblique purposes or if the same are continued on manufactured and false
evidence or if no case is made out on the admitted facts, it would be in the
ends of justice to set aside or quash the criminal proceedings. Once this Court
is satisfied that the criminal proceedings amount to abuse of process of court,
it would quash such proceedings to ensure justice. This Court's power under
Article 142(1) to do "complete justice" is entirely of different
level and of a different quality. What would be the need of complete
justice in a cause or matter would depend upon the facts and circumstances
of each case and while exercising that power the Court would take into consideration
the express provisions of a substantive statute. Any prohibition or restriction
contained in ordinary laws cannot act as a limitation on the constitutional
power of this Court. Once this Court has seisin of a cause or matter before it,
it has power to issue any order or direction to do "complete justice"
in the matter.
36. While considering the nature and ambit of its own power under this
Article, this Court observed that it was advisable to leave its power undefined
and uncatalogued so that it remains elastic enough to be molded to suit the
given situation; even where no alternative remedy is efficacious due to lapse
[see Delhi Development Authority v. Skipper Construction Co. (P) Ltd.
[(1996) 4 SCC 622] relying on Re: Vinay Chandra Mishra (1995) 2 SCC 584 and
Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293). The
power to do complete justice under this Article is, in a way, corrective power,
which gives preference to equity over law. It is a residuary power, supplementary
and complementary to the powers specially conferred by the statutes to do
complete justice between the parties whenever it is just and equitable to do
so. It is intended to prevent any obstruction to the stream of justice.
37. In this view of the matter, in order to do complete justice to the
parties in the backdrop of the peculiar facts of this case and other
circumstances noticed hereinbefore and also taking into consideration the
future career of the appellants who by this time might have joined the noble
medical profession and owing to the reasons and observations above stated, this
appeal is allowed as a result thereof the order of the High Court impugned in
this appeal is set aside subject to the directions contained herein.
38. Mr. K. K. Venugopal and Mr. P. P. Rao at one stage of the hearing very
fairly suggested that keeping in view the relationship of a teacher and taught
and having regard to the peculiar facts and circumstances of the case, the
concerned respondents would be satisfied if an apology is tendered and some
amount of compensation is awarded in favour of the third respondents-informants
of Crime No.412 of 2005 and of Crime No.21 of 2006.
39. We, having regard to the peculiar facts and circumstances of this case,
are of the opinion that it is a fit case where we should exercise our
discretionary jurisdiction under Article 142 of the Constitution of India so as
to bring the dispute between the parties to an end. We, however, are of the
opinion that as the appellants, at the relevant time, were students, no amount
of compensation be directed to be paid.
They must, however, file a written apology in the courts where the
proceedings are pending.
40. Consequently, criminal proceedings arising out of Case Crime No.
412/2005 registered at the behest of Dr. Indra Mohini Sharma under Sections
452, 323, 504, 506 and 427 IPC and proceedings of Case Crime No. 21/2006 under
Sections 452, 323, 336, 504, 506 and 427 IPC filed by Rajender Kuntal at Police
Station Vijay Nagar, Ghaziabad and charges said to have been framed by the
trial court based upon the above-said criminal cases against the appellants
shall also stand quashed.
41. Before parting with this judgment, we make it clear that any
observations made by us in this judgment may not be construed as an expression
of opinion on the genuineness, authenticity, validity and legality of the
allegations and counter allegations levelled by the parties against each other
in different proceedings and we have closed the proceedings of the
above-mentioned FIRs initiated against the appellants mainly in exercise of our
jurisdiction under Article 142 of the Constitution.