Devi Vs. State of Bihar & Ors  INSC 676 (15 December 2000)
Shah & S.N. Variava
This Appeal is against an Order dated 10th November, 1999 by which, in an
Application under Section 482 of the Code of Criminal Procedure, a criminal
complaint has been quashed on the ground that the complaint spelled out civil
wrong and continuance of the criminal prosecution would be an abuse of process
of the court.
complaint was that Respondents 2 to 10 had fraudulently got the father of the
Complainant to execute a gift deed. On the basis of this complaint the
Magistrate held an enquiry under Section 202 of the Code of Criminal Procedure
and dismissed the complaint under Section 203 of the Code of Criminal
Procedure. As against the Order of dismissal the Appellant went in Revision.
The learned Sessions Judge set aside the Order of dismissal and remanded the
case back to the Magistrate.
such remand the Magistrate issued process against Respondents 2 to 10 to face
trial under Sections 419, 420, 467 and 120 B of the Indian Penal Code.
2 to 10 then filed a Petition under Section 482 of the Code of Criminal
Procedure for quashing the complaint. By the impugned Order the complaint has
been quashed on the ground, as set out above, that the complaint spelled out a
civil wrong and, therefore continuance of the criminal prosecution would be an
abuse of process of the court.
submitted that the impugned Order was unsustainable. He submitted that facts
make out a civil wrong as well as a criminal liability. He submitted that
merely because civil action can be taken does not mean that a criminal
complaint is not maintainable. In support of his submission he relied upon the
case of Trisuns Chemical Industry v. Rajesh Agarwal and Ors. reported in JT
1999 (6) SC 618. In this case, the agreement between the parties contained an
Arbitration clause. This Court held that merely because the dispute could be
referred to arbitration it was not an effective substitute for a criminal
prosecution when the act also made out an offence.
other hand, Mr. Singh submitted that the alleged acts have made out no case for
taking cognizance. He submitted that at the highest the remedy would lie in a Civil Court only. He relied upon the cases of
State of Haryana v. Bhajan Lal reported in 1992 Supp
(1) SCC 335 and Mr. K. Ramakrishna & Ors. v. State of Bihar & Anr.
in JT 2000 (Supp. 1) SC 53, In these cases it is held that inherent powers can
be exercised to quash proceedings to prevent abuse of the process of law and to
secure ends of justice. It has been held that where the allegations in the FIR
do not constitute the alleged offence or where the offence is not disclosed in
the complaint or the FIR the frivolous criminal litigation could be quashed.
could be no dispute to the proposition that if the complaint does not make out
an offence it can be quashed.
it is also settled law that facts may give rise to a civil claim and also
amount to an offence. Merely because a civil claim is maintainable does not
mean that the criminal complaint cannot be maintained. In this case, on the
facts, it cannot be stated, at this prima facie stage, that this is a frivolous
complaint. The High Court does not state that on facts no offence is made out.
If that be so, then merely on the ground that it was a civil wrong the criminal
prosecution could not have been quashed.
view, the Order of the High Court cannot be maintained and is accordingly set
aside. The trial Court to proceed with the Complaint in accordance with law.
The Appeal is allowed. There will, however, be no Order as to costs.