Smt. Rashmi
Kumar Vs. Mahesh Kumar Bhada [1996] INSC 1638 (18 December 1996)
K. Ramaswamy,
S.B. Majumudar, G.T. Nanavati K. Ramaswamy, J.
ACT:
HEAD NOTE:
This
appeal has been placed before this Bench pursuant to an order date 19.4.1995
passed by a two Judge Bench in the following terms:
"A
decade has gone by since Pratibha Rai vs. Suraj Kumar & Anr, [(1985) 2 SCC
370] - a decision by a majority of 2:1 has governed the scene. Having regard to
its wider ramifications and its actual working in the last decade, we are of
the view that a fresh look to the ratio in that case is necessary. We,
therefore, order that this case be placed before a three-judge Bench."
This appeal by special leave arises from the Judgment of the Allahabad High
Court dated June 19, 1992 in Criminal Miscl. Case No.44 of
1992. The admitted facts are that the appellant was married to the respondent
on July 7, 1973 at Lucknow according to the Hindu rites and rituals. The parties have
three children from the wedlock. It is not in dispute that there was
estrangement in the marital relationship between the husband and the wife. It
is the case of the appellant that she was treated with cruelty and was driven
out of the marital home along with the three children. She was constrained to
lay proceedings under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. The appellant was given jewellery, i.e., gold and silver
ornaments and other household goods enumerated in Annexures I and II and also
cash by her parents, brothers and other relatives at different ceremonies prior
to her marriage and after the marriage at the time of bidai (farewell). She
claims that all these articles constituted her stridhana properties and were
kept in the custody of the respondent-husband. The respondent has asked the
appellant to entrust for safe custody all the jewellery and cash mentioned in
Annexure I, to his father with the promise that on her demand whenever made,
they would be returned. Accordingly, she had entrusted them to the appellant at
Lucknow in the presence of three named
witnesses. Similarly, the household goods mentioned in Annexure-II were
entrusted by the parents of the appellant to the respondent at the time of
farewell in the presence of three named witnesses. They lived together in Delhi in her in-laws house. The appellant
alleged in the complaint that she was treated with cruelty in the matrimonial
home and ultimately on July 24/25, 1978 she and the children were thrown out
from the matrimonial home at duress and at the peril of their lives.
Accordingly, she was driven out from the matrimonial home without getting an
opportunity to take with her Stridhana properties enumerated in Annexures I and
II.
She
filed an application under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. Even thereafter she went to Cochin where at the respondent- husband was working, on October 9, 1986 and requested him to restitute her
into the conjugal society along with the children. he promised that he would do
it provided she withdrew her application for restitution of conjugal rights.
He
also promised to return the jewellery and other valuables mentioned in Annexures
I and II entrusted to him. Even after her withdrawing the application, on October 21, 1986, he did not take her into the
conjugal society. Therefore, she was again constrained to file second
application on November
18, 1986 for
restitution of conjugal rights. She also filed application under Section 125 of
the Code of Criminal Procedure, 1973 (for short, the "Code") for
maintenance.
Since
these attempts proved unsuccessful, she made a demand on December 5, 1987 to return the jewellery as detailed
in Annexure I and household goods mentioned in Annexure II but the respondent
flatly refused to return her stridhana properties. Consequently, she filed a
private complaint on September
10, 1990.
After
recording her statement under Section 200 of the Code, the learned Magistrate
took cognizance of the offence and issued process to the respondent. While the
respondent appeared in the Court, he filed an application under Section 482 of
the Code in the High Court to quash the proceedings.
As
stated earlier, the High Court in the impugned Order has quashed the
proceedings on two grounds, viz.,
(i) the
appellant did not make out any case in the complaint and
(ii) it
is barred by limitation. On the ground of limitation, the learned Judge came to
the conclusion that in October 1986 the appellant had made a demand for return
of the jewellery and gold but the respondent did not return the same.
Therefore, it furnished a cause of action. Since complaint was laid in
September 1990, it was clearly barred by limitation the period prescribed being
three years.
Smt. Indira
Jaising, Learned senior counsel for the appellant, contended that the ratio in Pratibha
Rani V/s. Suraj Kumar & Anr. [(1985) 2 SCC 370] has stood the test of time
for more than a decade though therein there was difference of opinion between
the majority and the minority on certain aspects of the matter. The decision
has never been doubted by any other Bench. The said ration is based on the
personal law as elaborately discussed in the judgment.
Therefore,
it requires reiteration. Shri Rajinder Singh, learned senior counsel for the
respondent, on the other hand, sought to support the present reference to the
three Judge Bench on the basis of the conduct of the appellant. He also
contends that a clear demand for return of the stridhana properties was made in
October 1986 when the respondent had refused to return the same. Since the
complaint came to be filed only in September 1990, i.e., after a delay of 11
months from the expiry of prescribed limitation, it is time barred. Since no
application for condonation of delay was filed, the High Court was enjoined to
dismiss the complaint as being barred by limitation. Smt. Indira Jaisingh
contended that the offence punishable under Section 406, Indian Penal Code [for
short, the "IPC"] is a continuing offence and hence cause of action
arose every day subsequent to the refusal and, therefore, the complaint was not
barred by limitation. Shri Rajinder Singh further contended that the respondent
has always been willing to transfer his flat in Bombay in the name of his
daughters. He also states that he has been paying every month maintenance
allowance in respect of the children. Even if the articles which the appellant
is claiming is mentioned, the respondent is prepared to deposit the same in a
fixed account in the name of his daughters. This conduct on the part of the
respondent would militate against the conduct of the appellant who intends to
harass the respondent by filing endless complaints. These circumstances would
go to indicate that there are no justifiable reasons for interference with the
order of the High Court. At this juncture, it is relevant to not that several
attempts made by this Court to have the dispute settled amicably between the
parties, could not bear any fruit of success. Therefore, we are not inclined to
undertake the exercise once over.
The
question that has arisen for consideration is:
whether
the ratio in Pratibha Rani's case does not hold good any more? That case also
related to a complaint filed under Section 406, IPC for breach of trust by the
respondent- husband on his refusing to return stridhana property, viz., jewellery,
wearing apparels etc. The question that had arisen for consideration was
whether the stridhana property was exclusive property of the appellant-wife or
was a joint property owned and held by both the spouses? Though all the three
learned Judges concurred on the point of entrustment of the jewellery and
wearing apparels to be stridhana, the majority view was that the stridhana
property was the exclusive property of the appellant-wife and that, therefore,
the failure to return the property in the custody of the husband to the wife
constitutes breach of trust defined under Section 405, IPC. Therefore, the
offence of breach of trust punishable under Section 406 was made out, as per
the averments contained in the complaint. The minority view was that the
property entrusted to the husband after the marriage is joining property of the
wife and the husband. The essential requirement for constituting an offence
defined under Section 405, IPC in relation to stridhana property, is that there
should be a specific separate agreement between the parties, whereby the
property of the wife or the husband, as the case may be, is entrusted. In the
absence of such a separate agreement for specific entrustment, it would not be
possible to draw an inference of entrustment of custody or dominion over the
property of one spouse to the other and/or his or her close relations so as to
attract the stringent provisions of Section 406, IPC; otherwise there would be
disastrous effects and consequences on the peace and harmony which ought to
prevail in matrimonial homes. The appropriate remedy would appear to be by way
of a civil suit for recovery of the stridhana property.
Fazal
Ali, J., speaking for himself and Sabyasachi Mukherjee, J., as he then was,
held that the possession of Saudayika or stridhana of a Hindu married female
during coverture is absolutely clear and unambiguous. She is the absolute owner
of her stridhana property and can deal with it in any manner she likes. She may
spend the whole of it or give it away at her own pleasure by gift or will
without any reference to her husband. Ordinarily, the husband has no right or
interest in it with the sole exception that in times of extreme distress, as in
famine, illness or the like, the husband can utilise it but he is morally bound
to restore it or its value when he is able to do so. This right is purely
personal to the husband and the property so received by him in marriage cannot
be proceeded against even in execution of a decree for debt passed against the
husband. If in spite of demands for return of the articles, the husband refuses
to return them to the wife, it amounts to an offence of criminal breach of
trust. The stridhana property is not a joint property of the wife and the
husband. Section 27 of the Hindu Marriage Act merely provides another remedy of
suit to recover from the husband or the persons to whom the stridhana property
was entrusted.
The
mere factum of the husband and the wife living together does not entitle either
of them to commit a breach of criminal law and if one does, then he or she will
be liable for all the consequences of such breach. By mere living in
matrimonial home the stridhana does not become joint property of the spouses.
It is also not a partnership property between the wife and the husband. The
concept of partnership is alien to the stridhana property under the personal
law. Therefore, entrustment of stridhana, without creating any right in the
husband except, putting the articles in the possession, does not entitle him to
use the same to the detriment of his wife without her consent. The husband has
no justification for not returning the said articles as and when demanded by
the wife; nor can he burden her with loss of business by using the said
properties which were never intended by her while entrusting possession of the stridhana.
The husband being only a custodian of the stridhana of his wife, cannot be said
to be in joint possession thereof and does not acquire a joint interest in the
property. It was, therefore, concluded that the custody or entrustment of the stridhana
with the husband does not amount to partnership in any sense of the term nor
does the stridhana becomes a joint property. It was held in para 60 of the
judgment that taking all the allegations made in the complaint, by no stretch
of imagination it could be said that they do not prima facie amount to an
offence of criminal breach of trust against the respondent. Thus there could be
no room for doubt that all the facts stated in the complaint constitute an
offence under Section 406, IPC and the appellant could not be denied the right
to prove her case at the trial by pre-empting it at the very inception by the
order passed by the High Court. Accordingly, it was quashed. Direction was
given to proceed with the trial from the stage at which stay was granted by
this Court. The only difference of point was whether there should be special
agreement of entrustment. Varadarajan, J. elaborately dealt with the special
agreement and had held that in view of the fact that wife and husband have
dominion over the wife's property jointly, proof of special agreement of
entrustment is an essential ingredient.
In Mayne's
Hindu Law & Usage [13th Edn.] edited by Justice Alladi Kuppuswami, former
Chief Justice of Andhra Pradesh High Court, in paragraph 644 at page 877 it is
stated that "Katyayana indicates a cross-classification of stridhana [Vivadachintamani
vide p.259; Jha HLS II, 529-31; Apararka, 21 MLJ (Jour.) 428. He further
states: "that which is obtained by a married woman or by a maiden, in the
house of her husband or of her father, from her brother (from her husband) or
from her parents, is stridhana [Vide: Katyayna cited in Mit., II, xi, 5; Smritichandrika,
IX, ii,4-5; V. May., IV, x, 8 etc.]. Under the caption "Yautaka and ayautake",
it is stated that "Yautaka is that which is given at the nuptial fire...
It includes all gifts made during the marriage ceremonies. Ayautaka is gift
made before or after marriage. Saudayika includes both Yautaka and Ayautaka and
received from strangers. It is defined to be gifts from affectionate kindered".
In support thereof, he relied on Venkatareddy v. Hanumant [(1993) 57 Bom 85]
and Muthukaruppa v. Sellathammal [(1916) 39 Mad. 298 at 300 and see para No.10]
At page 881, in paragraph 650, sub-para (4), it is stated that "So also
gifts or grants to her by strangers, whether made during coverture or when she
is a widow, will be her stridhana" [Vide Salemma v. Lutchmana [(1998) 21
Mad 100]. In paragraph 652 on page 882, it is stated that "the absolute
dominion of a woman over her saudayika property was admitted from the earliest
times". Katyayana declares: "The independence of women who have
received the saudayika wealth is desirable (in regard to it), for it was given
(by their kindered) for their maintenance out of affection. The power of women
over saudayika at all times is absolute both in respect of gift and sale,
according to their pleasure, even in (the case of) immovables". The Smiritichandrika
would confine saudayika to yautaka or the like, received by a woman from her
own parents or persons connected with them, in the house of either her father
or her husband, from the time of her betrothment to the completion of the
ceremony to be performed on the occasion of her entering her lord's house. But
his view has not been followed. The texts of Katyayana and Vyasa have been
explained by other commentators as including gifts received by her from her
husband, and from others after her marriage. The decisions of the courts have
taken the same view. Provided the gift is made by her husband or her parents or
by relatives either of her husband or of parents, it is immaterial whether it
is made before marriage, at marriage or after marriage. It is equally her saudayika.
In other words, saudayika means all gifts and bequests from relations but not
gifts and bequests from strangers. Saudayika of all sorts are absolutely at a
woman's own disposal. She may spend, sell, devise or give it away at her own
pleasure. In support of that conclusion, footnote No.6 cites several decisions
including Venkata Rama v. Venkata Suriya [(1880) 2 Mad 333] and Muthukaruppa v.
Sellathammal [(1916) 39 Mad 298] etc. It is stated thereafter that her husband
can neither control her in her dealings with it, nor use it himself. But he may
take it in case of extreme distress, as in a famine, or for some indispensable
duty, or during illness, or while a creditor keeps him in prison. Even then he
would appear to be under at least a moral obligation to restore the value of
the property when able to do so. What he has taken without necessity, he is
bound to repay with interest. This right to take the wife's property is purely
a personal one in the husband. If he does not choose to avail himself of it,
his creditors cannot proceed against her properties. The word `take' in the
text of Yajanavalkya means `taking' and `using'. Hence if the husband taking
his wife's property in the exceptional circumstances mentioned in the text does
not actually use it, the wife still remains its owner and the husband's
creditors have no claim against the property.
A
woman's power of disposal, independent of her husband's control, is not
confined to saudavika but extends to other properties as well. Devala says:
"A women's maintenance (vritti), ornaments, perquisites (sulka), gains (labha),
are her stridhana. She herself has the exclusive right to enjoy it. Her husband
has no right to use it except in distress...". In "N.R. Raghavachariar's
"Hindu law - Principles and Precedents" [8th Edn.] edited by Prof. S.
Venkataraman, one of the renowned Professors of Hindu law para 468 deals with
"Definition of Stridhana". In para 469 dealing with "Sources of
acquisition" it is stated that the sources of acquisition of property in a
women's possession are: gifts before marriage, wedding gifts, gifts subsequent
to marriage etc. Para 470 deals with "Gifts to a
maiden".
Para 471 deals with "Wedding
gifts" and it is stated therein that properties gifted at the time of
marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika,
are the bride's stridhana. In para 481 at page 426, it is stated that ornaments
presented to the bride by her husband or father constitute her Stridhana
property.
In para
487 dealing with "powers during coverture" it is stated that saudayika
meaning the gift of affectionate kindered, includes both Yautaka or gifts
received at the time of marriage as well as its negative Ayautaka. In respect
of such property, whether given by gift or will she is the absolute owner and
can deal with it in any way she likes. She may spend, sell or give it away at
her own pleasure.
It is
thus clear that the properties gifted to her before the marriage, at the time
of marriage or at the time of giving farewell or thereafter are her stridhana
properties. It is her absolute property with all rights to dispose at her own
pleasure. He has no control over her stridhana property. Husband may use it
during the time of his distress but nonetheless he has a moral obligation to
restore the same or its value to his wife. Therefore, stridhana property does
not become a joint property of the wife and the husband and the husband has no
title or independent dominion over the property as owner thereof.
In
this backdrop, the question that arises for consideration is: whether the fact
of a wife's having been driven out from the matrimonial home without taking
along with her stridhana properties, amount to entrustment with the husband
within the meaning of Section 405, IPC? Section 405 defines "Criminal
breach of trust thus:
"405.
Criminal breach of trust. - Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or disposes of that
property in violation of any direction of law prescribing the mode in which
such trust is to be discharge, or of any legal contract, express or implied,
which he has made touching the of such trust, or wilfully suffers any other
person so to do, commits "criminal breach of trust".
It is
not necessary to refer to the Explanations to the said section for the purpose
of this case. Hence they are omitted.
Thus
when the wife entrusts her stridhana property with the dominion over that
property to her husband or any other member of the family and the husband or
such other member of the family dishonestly misappropriates or converts to his
own use that property or wilfully suffers any other person to do so, he commits
criminal breach of trust. The essential ingredients for establishing an offence
of criminal breach of trust as defined in Section 405 and punishable under
Section 406, IPC with sentence for a period upto three years or with fine or
with both, are:
[i] entrusting
any person with property or with any dominion over property;
[ii] the
person entrusted dishonestly misappropriating or converting to his own use that
property; or dishonestly using or disposing of that property or wilfully
suffering any direction of law prescribing the mode in which such trust is to
be discharged, or of any legal contract made touching the discharge of such
trust. The expression "entrustment" carries with it the implication
that the person handing over any property or on whose behalf that property is
handed over to another, continues to be its owner. Entrustment is not
necessarily a term of law. It may have different implications in different
contexts. In its most general significance, all its imports is handing over the
possession for some purpose which may not imply the conferment of any proprietary
right therein. The ownership or beneficial interest in the property in respect
of which criminal breach of trust is alleged to have been committed, must be in
some person other than the accused and the latter must hold it on account of
some person or in some way for his benefit. In Pratibha Rani's case, the
majority has extensively considered the words "entrustment" of and
"dominion" over the property. All the case law in that behalf was
exhaustively considered obviating the necessity to tread once over the same. In
order to establish entrustment of dominion over the property, both the majority
and minority relied on in particular the judgment of this Court in Velji Raghavji
Patel v. State of Maharashtra [(1965) 2 SCR 492] wherein it was held that in
order to establish entrustment of dominion over the property to an accused
person, mere existence of that person's dominion over the property is not
enough. It must be further shown that his dominion was the result of
entrustment. The question therein pertained to the entrustment with the
dominion over the partnership property by one partner to the other. It was held
that the prosecution must establish that the dominion over the assets or
particular assets of the partnership was by a special agreement between the
parties. The property of the partnership being a partnership asset, every
partner has a right o or a dominion over it. It was held that special agreement
was necessary to constitute an offence of criminal breach of trust defined
under Section 405, IPS. In view of the finding that stridhana property is the
exclusive property of the wife on proof that she entrusted the property or
dominion over the stridhana property to her husband or any other member of the
family, there is no need to establish any further special agreement to
establish that the property was given to the husband or other member of the
family. It is always a question of fact in each case as to how property came to
be entrusted to the husband or any other member of the family by the wife when
she left the matrimonial home or was driven out therefrom. No absolute or fixed
rule of universal application can be laid down in that behalf. It requires to
be established by the complainant or the prosecution, depending upon the facts
and circumstances of the case, as to how and in what manner the entrustment of
the stridhana property or dominion over her stridhana came to be made to the
husband or any other member of the family or the accused person, as the case
may be. We are in respectful agreement with the majority view in Pratibha Rani's
case and consequently requires no reconsideration.
The
next question is; whether the appellant has made out any prima facie case of
entrustment in that behalf? A reading of the complaint clearly indicates that
her parents entrusted the property to the respondent at the time of her
farewell from her parents house in Lucknow. They lived together in matrimonial home in Deli. Three children were
born from the wedlock and during that period she had retained the custody of
the property. When she left the matrimonial home she had not taken the property
with her.
She
has specifically averred that when she went in October 1978 to Cochin
requesting the respondent-husband to take her into matrimonial home along with
the children, he promised to take her in the conjugal society and also that he
would return the jewellery to her subject to the condition that she should
withdraw her application filed under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights and accordingly she had withdrawn the
application. The learned Single Judge failed to correctly appreciate her
evidence recorded under Section 200 of the Code that she made a demand for
return of the jewellery and household goods. On the other hand, a fair reading
of it would indicate that when she met the respondent in Cochin and requested to take her and
children to home he promised to do so on her withdrawing the case for
restitution of conjugal rights. Threat the husband promised to return them but
he did not keep up his promise. The sequences that followed were that she filed
another case for restitution of conjugal rights and an application for
maintenance and thereafter she filed the complaint under Section 406, IPC. A
fair reading of the averments would clearly indicate that a prima facie case of
entrustment of the jewellery and the household goods had been made out. The
learned Judge was not right in jumping to the conclusion that the averments
made by the respondent in the counter-affidavit disclosed that no entrustment
was made of the jewellery, cash and household goods and other movables
enumerated in Annexures I and II details of which are not material for our
purpose. In the light of the above, we are of the view that a prima facie case
of entrustment had been made out by the appellant as the stridhana properties
were not returned to her by the husband. Obviously, therefore, the learned
Magistrate, having taken cognizance of the offence, had issued process for
appearance of the respondent. It is fairly settled legal position that at the
time of taking cognisance of the offence, the Court has to consider only the
averments made in the complaint or in the charge-sheet filed under Section 173,
as the case may be. It was held in State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164] that it is not open for the
Court to sift or appreciate the evidence at that stage with reference to the
material and come to the conclusion that no prima facie case is made out for
proceeding further in the matter. It is equally settled law that it is open to
the Court, before issuing the process, to record the evidence and on
consideration of the averments made in the complaint and the evidence thus
adduced, it is required to find out whether an offence has been made out.
On
finding that such an offence has been made out and after taking cognizance
thereof, process would be issued to the respondent to take further steps in the
matters. If it is a charge-sheet filed under Section 173 of the Code, the facts
stated by the prosecution in the charge-sheet, on the basis of the evidence
collected during investigation, would disclose the offence for which cognisance
would be taken by the court to proceed further in the matter. Thus it is not
the province of the court at that stage to embark upon and sift the evidence to
come to the conclusion whether offence has been made out or not. The learned
Judge, therefore, was clearly in error in attempting to sift the evidence with
reference to the averments made by the respondent in the counter-affidavit to
find out whether or not offence punishable under Section 406, IPC had been made
out.
The
next question that needs to be answered is: whether the complaint filed by the
appellant in September 1990 is time barred? Section 468 of the Code prescribes
period of limitation. Under sub-section (3) thereof, the period of limitation
shall be three years if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years, Since the offence alleged to
have been committed by the respondent is punishable under Section 406, viz.,
criminal breach of trust, and the punishment of imprisonment which may extend
to three years or with fine or with both, the complaint is required to be filed
within three years from date of the commission of the offence. It is seen that
the appellant has averred in paragraphs 21 and 22 of the complaint that she
demanded from the respondent return of jewellery detailed in Annexure I and
household goods mentioned in Annexure II on December 5, 1987 and the respondent flatly refused
to return the stridhana of the complainant-wife. In paragraph 22 of the
complaint, it is stated that the complainant was forced to leave the
matrimonial home in the manner described and the stridhana mentioned in Annexures
I and II belonging to the complainant was entrusted to the respondent-accused
which he refused to return to the complainant. Thus she has averred that the
respondent "has illegally, dishonestly and mala fidely retained and
converted it to his own use which is clearly a criminal breach of trust in
respect of the aforesaid property". The complaint was admittedly filed on September 10, 1990 meaning within three years from the
date of the demand and refusal by the respondent. The learned Judge relied upon
her evidence recorded under Section 200 of the Code. The learned counsel for
the respondent read out the text of the evidence to establish that the
appellant had demanded in October 1986 for return of the jewellery and that the
respondent refused to do the same. Thus it constitutes refusal from which date
the limitation period began to run and the complaint have been filed in
September 1990, is time barred, i.e., beyond three years. That view of the
learned Judge is clearly based on the evidence torn of the context without
reference to the specific averments made in the complaint and the evidence
recorded under section 200 of the Code. As stated earlier, the sequence in
which the averments came to be made was the voluntary promise of the respondent
and his failure to abide by the promise. It is incongruous to comprehend the
demand for return of jewellery etc, at the stage when she was persuading him to
take her into matrimonial home. Accordingly, we hold that the complaint was
filed within the limitation.
The
question, therefore, whether it is a continuing offence and limitation began to
run everyday loses its relevance, in view of the above finding. The decisions
cited in support thereof, viz., Vanka Radhamanohari (Smt.) v. Vanka Venkata
Reddy & Ors. [(1993) 3 SCC 4] and Balram Singh vs. Sukhwant Kaur [(1992) Crl.
L.J. 792 F.B. (P&H)] hence need not be considered. It is well settled legal
position that the High Court should sparingly and cautiously exercise the power
under Section 482 of the Code to prevent miscarriage of justice. In State of Himachal Pradesh v. Shri Pirthi Chand & Anr. [JT
1995 (9) 411] two of us [K. Ramaswamy and S.B. Majmudar, JJ.] composing the
Bench and in Judge Bench of this Court, reviewed the entire care law on the
exercise of power by the High Court under Section 482 of the Code to quash the
complaint or the charge-sheet or the First Information Report and held that the
High Court would be loath and circumspect to exercise its extraordinary power
under Section 482 of the Code or under Article 226 of the Constitution. The
Court would consider whether the exercise of the power would advance the cause
of justice or it would tantamount to abuse of the process of the Court. Social
stability and order require to be regulated by proceeding against the offender
as it is an offence against the society as a whole. This cardinal principle
should always be kept in mind before embarking upon the exercise of the
inherent power vested in the Court. Same view was taken in State of Haryana
& Ors. v. Bhajan lal & Ors. [(1992) Supp. 1 SCC 355] and G.L. Didwania
& Anr. v. Income Tax Officer & Anr. [(1995) Supp. SCC 25] etc.
Considered
from this perspective, we hold that the High Court was wholly wrong in quashing
the complaint/proceedings, under Section 432 of the Code. The appeal is
accordingly allowed. The judgment of the High Court is set aside. We make it
clear that all the observations in the judgment on merits are only to find out
prima facie case whether the High Court would be justified in the exercise of
its power under Section 482. The trial Court will have to decide the case on
its own merits in the light of the evidence that may be led at the trial
without being influenced in any manner by our observations made hereinabove.
The trial Court is directed to proceed from the stage the complaint was pending
at the time of quashing, to take further steps in accordance with law.
Back
Pages: 1 2