of Andhra Pradesh Vs. Golconda Linga Swamy and Anr  Insc 410 (27 July 2004)
Variava & Arijit Pasayat.
Appeal Nos. 1181/2003, 1183-1189/2003, 1191-1196/2003, Criminal Appeal
No.732/2004 @ SLP(Crl.)No.4702/2003, Crl.A.No. 736/2004@SLP(Crl.)no. 4703/2003,
Crl.A. No.735/2004 @ SLP(Crl.)No. 4704/2003, Crl. A.No.730/2004 @SLP(Crl.)No.
513/2003, Crl. A. No. 739/2004 @SLP (Crl.)no. 2190/2003, Crl.A. No.733/2004 @SLP(Crl.)
No. 2191/2003, Crl.A. No. 737/2004 @SLP (Crl.)No. 2632/2003, Crl. A. No.
738/2004 @SLP (Crl.)No. 2633/2003, Crl.A. No.731/2004 @ SLP(Crl.)No. 2636/2004
and Crl.A. No.734/2004 @SLP(Crl.)No. 3463/2003) ARIJIT PASAYAT, J Leave granted
in SLP (Crl.) Nos. 4702-4704/2003, 513/2003, 2190/2003, 2191/2003, 2632/2003,
2633/2003, 2636/2003 and 3463/2003.
impugned judgments the High Court of Andhra Pradesh has quashed the FIR filed
by Prohibition and Excise officers alleging commission of offences under Andhra
Pradesh Excise Act, 1968 (in short the 'Act') and the Andhra Pradesh
Prohibition Act, 1995 (in short the 'Prohibition Act'). In all the cases the
allegation was that the concerned accused was either transporting or storing
black jaggery/molasses for the purpose of manufacturing illicit distilled
liquor or was an abettor so far as the offence of manufacturing illicit liquor
is concerned. On being moved by application under Section 482 of the Code of
Criminal Procedure, 1973 ( in short the "Code") by the concerned
accused for quashing the FIR, the High Court accepted the plea holding that
there was no material to show that the seized articles were intended to be used
for manufacturing of illicit distilled liquor. Accordingly the FIR in each case
support of the appeals, learned counsel appearing for the State of Andhra Pradesh submitted that the High Court's
approach is clearly erroneous.
are not cases where there was no material to show the commission of a crime.
Whether there was adequate material already in existence or which could have
been collected during investigation and their relevance is essentially a matter
of trial. The High Court was not therefore justified in quashing the FIR.
exercise of power under Section 482 of the Code is clearly indefensible.
contra, learned counsel for the concerned accused-respondents submitted that on
mere surmises and conjectures that the black jaggery/molasses being transported
or stored were intended to be used for the purpose of manufacturing illicit
distilled liquor, the FIR was lodged. Suspicion however strong cannot be a
ground to initiate criminal proceedings thereby unnecessarily harassing the
innocent traders/transporters. In some cases, it was pointed out that there was
absolutely no material to even show that the seized articles were intended for
manufacturing illicit distilled liquor.
of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The Section does not confer any new powers on the
High Court. It only saves the inherent power which the Court possessed before
the enactment of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely,
give effect to an order under the Code,
prevent abuse of the process of court, and
otherwise secure the ends of justice. It is neither possible nor desirable to
lay down any inflexible rule which would govern the exercise of inherent
legislative enactment dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and
duties imposed upon them by law. That is the doctrine which finds expression in
the Section which merely recognizes and preserves inherent powers of the High
Courts. All courts, whether civil or criminal possess, in the absence of any
express provision, as inherent in their constitution, all such powers as are
necessary to do the right and to undo a wrong in course of administration of
justice on the principle quando lex aliquid alique concedit, conceditur et id
sine quo res ipsa esse non potest (when the law gives a person anything it
gives him that without which it cannot exist). While exercising powers under
the Section, the Court does not function as a court of appeal or revision.
Inherent jurisdiction under the Section though wide has to be exercised
sparingly, carefully and with caution and only when such exercise is justified
by the tests specifically laid down in the Section itself. It is to be
exercised ex debito justitiae to do real and substantial justice for the
administration of which alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to abuse that authority so as
to produce injustice, the court has power to prevent such abuse. It would be an
abuse of process of the court to allow any action which would result in
injustice and prevent promotion of justice. In exercises of the powers court
would be justified to quash any proceeding if it finds that initiation or
continuance of it amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look into the materials
to assess what the complainant has alleged and whether any offence is made out
even if the allegations are accepted in toto.
R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this Court
summarized some categories of cases where inherent power can and should be
exercised to quash the proceedings.
it manifestly appears that there is a legal bar against the institution or continuance
e.g. want of sanction;
the allegations in the first information report or complaint taken at its face
value and accepted in their entirety do not constitute the offence alleged;
the allegations constitute an offence, but there is no legal evidence adduced
or the evidence adduced clearly or manifestly fails to prove the charge.
dealing with the last category, it is important to bear in mind the distinction
between a case where there is no legal evidence or where there is evidence
which is clearly inconsistent with the accusations made, and a case where there
is legal evidence which, on appreciation, may or may not support the
accusations. When exercising jurisdiction under Section 482 of the Code, the
High Court would not ordinarily embark upon an enquiry whether the evidence in
question is reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of the trial Judge.
Judicial process no doubt should not be an instrument of oppression, or,
should be circumspect and judicious in exercising discretion and should take
all relevant facts and circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private complainant to unleash
vendetta to harass any person needlessly. At the same time the Section is not
an instrument handed over to an accused to short-circuit a prosecution and
bring about its sudden death. The scope of exercise of power under Section 482
of the Code and the categories of cases where the High Court may exercise its
power under it relating to cognizable offences to prevent abuse of process of
any court or otherwise to secure the ends of justice were set out in some
detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335)
A note of caution was, however, added that the power should be exercised
sparingly and that too in rarest of rare cases. The illustrative categories
indicated by this Court are as follows:
Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against 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 F.I.R. 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.
the allegations in the F.I.R. 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 S. 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 party.
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
noted above, the powers possessed by the High Court under Section 482 of the
Code are very wide and the very plenitude of the power requires great caution
in its exercise. Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. High Court being the highest
Court of a State should normally refrain from giving a prima facie decision in
a case where the entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no hard and fast rule
can be laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata
Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir
Saran v. State of Bihar and another (AIR 1964 SC 1)). It
would not be proper for the High Court to analyse the case of the complainant
in the light of all probabilities in order to determine whether a conviction
would be sustainable and on such premises, arrive at a conclusion that the
proceedings are to be quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be proceeded with. In
proceeding instituted on complaint, exercise of the inherent powers to quash
the proceedings is called for only in a case where the complaint does not
disclose any offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to the High Court to
quash the same in exercise of the inherent powers under Section 482 of the
Code. It is not, however, necessary that there should be meticulous analysis of
the case before the trial to find out whether the case would end in conviction
or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears
that on consideration of the allegations in the light of the statement made on
oath of the complainant or disclosed in the F.I.R. that the ingredients of the
offence or offences are disclosed and there is no material to show that the
complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there
would be no justification for interference by the High Court. When an
information is lodged at the police station and an offence is registered, then
the mala fides of the informant would be of secondary importance. It is the
material collected during the investigation and evidence led in Court which
decides the fate of the accused person. The allegations of mala fides against
the informant are of no consequence and cannot by itself be the basis for
quashing the proceeding. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and
others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma, I.A.S.
and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar
Pal Singh Gill and another (1995 (6) SCC 194), State of Kerala and others v.
O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996
(7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder
Kaur v. State (Govt. of NCT of Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj
v. State NCT of Delhi and others AIR 1999 SC 1216), State of Karnataka v. M. Devendrappa
and another (2002 (3) SCC 89).
in view the principles of law as enunciated above, the action of the High Court
in quashing the FIR cannot be maintained so far as Criminal Appeal Nos.
1180-1181/2003, 1184-1189/2003, 1191-1192/2003 and Criminal Appeals arising out
of SLP(Crl.) Nos. 4702-4704/2003, 513/2003, 2636/2003 are concerned.
these cases there was either statements of witnesses or seizure of illicit
distilled liquor which factors cannot be said to be without relevance.
the material already in existence or to be collected during investigation would
be sufficient for holding the concerned accused persons guilty has to be
considered at the time of trial. At the time of framing the charge it can be
decided whether prima facie case has been made out showing commission of an
offence and involvement of the charged persons. At that stage also evidence
cannot be gone into meticulously. It is immaterial whether the case is based on
direct or circumstantial evidence. Charge can be framed, if there are materials
showing possibility about the commission of the crime as against certainty.
That being so, the interference at the threshold with the F.I.R. is to be in
very exceptional circumstances as held in R.P. Kapoor and Bhajan Lal cases
the acceptability of the materials to fasten culpability on the accused persons
is a matter of trial. These are not the cases where it can be said that the FIR
did not disclose commission of an offence. Therefore, the High Court was not
justified in quashing the FIR in the concerned cases.
as Criminal Appeal Nos. 1183/2003, 1193-1196/2003 and Criminal Appeals arising
out of SLP(Crl.) Nos. 2191/2003, 2632/2003, 2633/2003, and 3463/2003 are
concerned, we find that the FIR did not disclose commission of an offence
without anything being added or subtracted from the recitals therein.
the FIR is not intended to be an encyclopedia of the background scenario, yet
even skeletal features must disclose the commission of an offence.
position is not so in these cases. Therefore, the High Court's interference
does not suffer from any legal infirmity, though the reasonings indicated by
the High Court do not have our approval.
ultimate analysis, Criminal Appeal Nos. 1180/2003, 1181/2003, 1184-1189/2003,
1191-1192/03 and Criminal Appeals arising out of SLP (Crl.) nos.4702-4704/2003,
513/2003, 2636/2003 are allowed and Crl. A. Nos. 1183/2003, 1193-96/2003, and
Criminal appeals arising out of SLP (Crl.) Nos. 2191/2003, 2632/2003, 2633/2003
and 3463/2003 are dismissed so far as Criminal Appeal arising out of SLP (Crl.)No.
2190 is concerned, it is allowed in respect of A-1, but dismissed so far as it
relates to A-2 in the absence of any allegation against him.
counsel for the concerned accused persons submitted that early investigation in
the matter and in submission of the report under Section 173 of the Code would
be in the interest of all concerned accused. Learned counsel for the State of Andhra
Pradesh submitted that all possible efforts will be made to complete the
investigation in each case latest by the end of November, 2004. We make it
clear that we have not expressed any opinion on the merits of the case.
appeals are disposed of as set out above.