State
of Bihar Vs. Sri Rajendra Agrawalla [1996] INSC
98 (18 January 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. G.B. Pattanaik, J.
CITATION:
JT 1996 (1) 601 1996 SCALE (1)394
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by the State is directed against the order of the Patna High Court dated
5.3.1992, by which order the High Court has quashed the cognizance taken
against the respondent under Section 414 of the Indian Penal Code.
Shri Uddai
Singh, Sub-Inspector of Police, Dhanbad Police Station was on duty at the
Police Station on 8.1.1992. At 5.15 P.M. two
Constables brought a truck bearing Registration No. HRX-3125 along with its
driver, Khalasi and two other persons and reported that they found the truck
coming speedly and crossing the Railway gate and did not stop even though the
vehicle was asked to stop.
They,
therefore, chased the vehicle and stopped the same after some time and found
that the truck has been loaded with pieces of iron tracks which were the
property of B.C.C.L. On their enquiry about the documents, a copy of challan
was shown but suspecting something wrong they brought the truck with the
persons to the Police Station.
The
Sub-Inspector then found on checking that most of the iron loaded on the truck
were the pieces of the track trolly used in B.C.C.L. On suspicion the
Sub-Inspector asked the driver who told that the truck has been loaded from the
factory of Rajendra Agarwalla, the respondent in this appeal and one Surendra Agarwal,
proprietor of Associate Iron and Steel Company at Saraidhela has purchased the
same. But they could not produce any document. He therefore submitted a report
to the Inspector-cum-Officer-in-Charge of the Police Station alleging that the
accused persons are guilty of offence under Section 414 of I.P.C. and the said
report was treated as First Information Report. After investigation, charge
sheet was filed against the respondent and five other persons on 21.1.1992. In
G.R. Case No. 107 of 1992, the learned Magistrate on perusal of the papers
submitted by the police and all other relevant materials took conizance of the
offence in question on 1.2.1992. The respondent thereafter filed application in
the Patna High Court at Ranchi Bench invoking the jurisdiction of the Court
under Section 482 of the Code of Criminal Procedure praying for quashing the
order of cognizance taken and the said application was registered as Criminal
Case No. 475 of 1992.
The
learned Judge by the impugned order having quashed the cognizance taken by the
Magistrate so far as respondent is concerned, the State has approached this
Court.
Mr.
B.B. Singh, learned counsel appearing for the State contended that the State
contended that the High Court exceeded its jurisdiction under Section 482 of
the Code of Criminal Procedure by trying to appreciate the evidence on record
and thereafter recording the finding that no prima facie case has been made
out. Mr. Singh further contended that notwithstanding the well recognised
principle enunciated by this Court that the power under Section 482 of the Code
of Criminal Procedure should be exercised very sparingly and cautiously and
only when the court comes to the conclusion that there has been an abuse of the
process of the court, but in the case in hand the learned Judge examined the
legality of the order of cognizance as a court of appeal and as such the order
of the High Court is unsustainable in law. Mr. U.R. Lalit, learned senior
counsel appearing for the respondent on the other hand contended that the High
Court having examined the material and having come to the conclusion that the
materials on record do not make out an offence under Section 414 of the Indian
Penal Code, the court was fully justified in quashing the order of cognizance
and the same order should not be interfered by this Court.
It has
been held by this Court in several cases that the inherent power of the court
under Section 482 of the Code of Criminal Procedure should be very sparingly
and cautiously used only when the court comes to the conclusion that there
would be manifest injustice or there would be abuse of the process of the
court, if such power is not exercised. So far as the order of cognizance by a
Magistrate is concerned, the inherent power can be exercised when the
allegations in the First Information Report or the complaint together with the
other materials collected during investigation taken at their face value, do
not constitute the offence alleged. At that stage it is not open for the court
either to shift the evidence or appreciate the evidence and come to the conclusion
that no prima facie case is made out. In a recent Judgment of this Court to
which one of us (Hon. K. Ramaswamy, J.) was a member it has been held,
following the earlier decision in Mrs. Rupan Deol Bajaj & Anr. v. Kanwar
Pal Singh Gill & anr. (JT 1995 (7) SC 299) :
'It is
thus settled law that the exercise of inherent power of the High Court is an
exceptional one. Great care should be taken by the High court before embarking
to scrutinize the FIR/chargesheet/complaint. In deciding whether the case is
rarest of rare cases to scuttle the prosecution in its inception, it first has
to get into the grip of the matter whether the allegations constitute the
offence. It must be remembered that FIR is only an imitation to move the
machinery and to investigate into cognizable offence.
After
the investigation is concluded and the charge-sheet is laid the prosecution
produces the statements of the witnesses recorded under Section 161 of the Code
in support of the charge-sheet. At that stage it is not the function of the
Court to weigh the pros and cons of the prosecution case or to consider
necessity of strict compliance of the provisions which are considered mandatory
and its effect of non- compliance. It would be done after the trial is
concluded. The Court has to prima facie consider from the averments in the
charge-sheet and the statements of witnesses on the record in support thereof
whether court could take cognizance of the offence, on that evidence and
proceed further with the trial. If it reaches a conclusion that no cognizable
offence is made out no further act could be done except to quash the charge
sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide
initiation of the proceedings to wreak private vengeance process of criminal is
availed of in laying a complaint or FIR itself does not disclose at all any
cognizable offence - the court may embark upon the consideration thereof and
exercise the power.
When
the remedy under Section 482 is available, the High Court would be loath and
circumspect to exercise its extraordinary power under Article 226 since
efficacious remedy under Section 482 of the Code is available. When the Court
exercises its inherent power under Section 482 the prime consideration should
only be whether the exercise of the power would advance the cause of justice or
it would be an abuse of the process of the court. When investigation officer
spends considerable time to collect the evidence and places the charge-sheet
before the Court, further action should not be short-circuited by resorting to
exercise inherent power to quash the charge-sheet. The social stability and
order requires 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 exercising inherent power.' Bearing in
mind the aforesaid parameters if the charge sheet and the F.I.R. filed in the
case in hand are examined and the impugned order of the High court is tested,
the conclusion becomes irresistible that the High Court exceeded its
jurisdiction by trying to appreciate the evidence and coming to a conclusion
that no offence is made out. On examining the material on record and the
impugned judgment of the High Court we are of the considered opinion that the
High Court was wholly unjustified in invoking its inherent power under Section
482 of the Code of Criminal Procedure to quash the cognizance taken in as much
as the allegation in the F.I.R. and material referred to in the charge sheet do
make out an offence under Section 414 of the Indian Penal Code, so far as the
respondent is concerned. In the aforesaid premise the impugned order of the
High Court dated 5.3.1992 passed in Criminal Miscellaneous No. 475 of 1992 is
quashed and this appeal is allowed. The Magistrate is directed to proceed with
the trial against the respondent.
The
respondent may now appear before the Magistrate forthwith.
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