Pratibha
Vs. Rameshwari Devi & Ors [2007] Insc 938 (17 September 2007)
A.K.
Mathur & Tarun Chatterjee
CRIMINAL
APPEAL NO. 1242 OF 2007 [Arising out of SLP [Crl] No. 6334 of 2004] TARUN
CHATTERJEE, J.
1.
Leave granted.
2.
This appeal by special leave is preferred against the judgment and order dated
14th September, 2004 of the High Court of Judicature for Rajasthan at Jaipur
Bench, whereby the High Court had quashed an FIR dated 31st December, 2001
lodged at the instance of the appellant in the exercise of its inherent powers
under Section 482 of Code of Criminal Procedure (hereinafter referred to as
the Code). The said FIR was registered by the complainant/appellant
(in short the appellant) against the accused/respondents (in short the
respondents) for the alleged offences under Section 498-A and 406 of IPC.
3.
Before we take up the questions that were posed before us by the learned
counsel for the parties, it is necessary at this stage to state the facts
giving rise to the filing of this appeal. Accordingly, the facts in a nutshell
are stated below :
4. The
appellant had entered into wedlock with the respondent No.2 on 25th January, 2000. The respondent Nos.1, 3, 4 and 5
are the mother-in-law, brother-in-law, maternal father-in-law and the father-in-law
of the appellant respectively. The appellant left her matrimonial home on 25th May, 2001 with her father and brother. In the
FIR, the appellant alleged that during her stay in her matrimonial home, she
was subjected to harassment and cruelty by all the respondents as they were
dissatisfied with the articles that the appellant had brought as stridhan. The
respondents also forced her to bring Rs.5 lacs more in dowry from her father which
she could not bring from her parents nor could her parents afford to pay such a
huge amount. The respondents also did not allow the appellant to take back her
ornaments and other articles, which were gifted to her as stridhan when she
left her matrimonial home. On 31st July, 2001,
the husband, namely, respondent No.2 filed a petition before the Family Court
praying for a decree for divorce on the ground of mental cruelty. On 31st December, 2001, the appellant lodged an FIR No.221
of 2001 against the respondents for the alleged offences under Section 498A and
406 of IPC. This FIR was challenged by way of a criminal miscellaneous petition
under Section 482 of the Code in which the respondents prayed for quashing of
the said FIR. The respondents had also obtained an order granting anticipatory
bail from the Sessions Judge, Jhunjhunu, Rajasthan on 8th February, 2002. While the petition under Section
482 of the Code was pending, a final investigation report was submitted on 13th February, 2004 in the High Court. The High Court
by the impugned order had quashed the FIR No.221 of 2001 on the basis of the
report of the Investigating Officer submitted before it and concluded that no
offence under Section 498A and 406 of the IPC was made out by the appellant
against the respondents. The High Court also observed that the FIR must be quashed
to avoid undue harassment and mental agony to the respondents, more so when the
divorce petition was still pending before the Family Court. It is this order of
the High Court, quashing the FIR in the exercise of its inherent power under
Section 482 of the Code, which is now under challenge before us in this appeal.
5.
Having heard the learned counsel for the parties and after considering the
materials on record and the complaint filed by the appellant under Sections
498A and 406 of the IPC, we are of the view that the High Court had exceeded
its jurisdiction by quashing the FIR No.221 of 2001 in the exercise of its
inherent powers under Section 482 of the Code. Before we consider the scope and
power of the High Court to quash an FIR in the exercise of its inherent powers
under Section 482 of the Code even before the parties are permitted to adduce
evidence in respect of the offences alleged to have been made under the
aforesaid two sections (namely, Sections 498A and 406 of IPC), we may keep it
on record that two questions merit our determination in the present case: - (i)
whether the High Court while quashing the FIR in the exercise of its inherent
powers under Section 482 of the Code was entitled to go beyond the complaint
filed by the complainant; and (ii) whether the High Court was entitled to look
into and consider the investigation report submitted by four officers of the
rank of Dy.
Superintendent
of Police for quashing the FIR even before the same could be filed before the
concerned Magistrate. Before we do that, we may first consider how and when the
High Court, in its inherent powers under Section 482 of the Code, would be
justified in quashing an FIR. It is at this stage appropriate to refer Section
482 of the Code itself which runs as under:
482.
Saving of inherent powers of High Court Nothing in this Code shall be deemed
to limit or affect the inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of
justice. A bare look at this provision would show that while exercising
such inherent powers, the High Court must be satisfied that either:- (i) An
order passed under the Code would be rendered ineffective; or (ii) The process
of any court would be abused; or (iii) The ends of justice would not be
secured.
[1]
SCC 561] Chandrachud, C.J. [as His Lordship then was] had observed that if the
FIR did not disclose the commission of a cognizable offence, the court would be
justified in quashing the investigation on the basis of the information as laid
or received. In the same judgment, Justice A.N. Sen [as His Lordship then was]
who has written the main judgment, has laid down the legal propositions as
follows:
...the
legal position is well-settled. The legal position appears to be that if an
offence is disclosed, the Court will not normally interfere with an
investigation into the case and will permit investigation into the offence
alleged to be completed; if, however, the materials do not disclose an offence,
no investigation should normally be permitted.... Once an offence is disclosed,
an investigation into the offence must necessarily follow in the interests of
justice. If, however, no offence is disclosed, an investigation cannot be
permitted, as any investigation, in the absence of any offence being disclosed,
will result in unnecessary harassment to a party, whose liberty and property
may be put to jeopardy for nothing. The liberty and property of any individual
are sacred and sacrosanct and the court zealously guards them and protects
them. An investigation is carried on for the purpose of gathering necessary
materials for establishing and proving an offence which is disclosed. When an
offence is disclosed, a proper investigation in the interests of justice
becomes necessary to collect materials for establishing the offence, and for
bringing the offender to book. In the absence of a proper investigation in a
case where an offence is disclosed, the offender may succeed in escaping from
the consequences and the offender may go unpunished to the detriment of the
cause of justice and the society at large. Justice requires that a person who
commits an offence has to be brought to book and must be punished for the same.
If the court interferes with the proper investigation in a case where an
offence has been disclosed, the offence will go unpunished to the serious
detriment of the welfare of the society and the cause of justice suffers. It is
on the basis of this principle that the court normally does not interfere with
the investigation of a case where an offence has been disclosed Whether an
offence has been disclosed or not must necessarily depend on the facts and
circumstances of each particular case.... If on a consideration of the relevant
materials, the court is satisfied that an offence is disclosed, the court will
normally not interfere with the investigation into the offence and will
generally allow the investigation into the offence to be completed for
collecting materials for proving the offence.
370,
this Court at page 395 observed as follows:
It is well settled by a long course of decisions of this Court that for the
purpose of exercising its power under Section 482 Cr PC to quash a FIR or a complaint
the High Court would have to proceed entirely on the basis of the allegations
made in the complaint or the documents accompanying the same per se. It has no
jurisdiction to examine the correctness or otherwise of the allegations. [emphasis
supplied] In Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre
and Ors. [1988 [1] SCC 692], this Court has reiterated the same principle and
laid down that when a prosecution at the initial stage is asked to be quashed,
the test to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence.
Ors.
[1988 [4] SCC 655], Venkatachaliah, C.J. [as His Lordship then was] has laid
down that the jurisdiction under Section 482 of the Code has to be exercised
sparingly and with circumspection and has observed that in exercising that
jurisdiction, the High Court should not embark upon an inquiry whether the
allegations in the complaint are likely to be established by evidence or not.
6.
From the principles laid down in the abovementioned decisions, it is clear that
the Court is entitled to exercise its inherent jurisdiction for quashing a
criminal proceeding or an FIR when the allegations made in the same do not
disclose the commission of an offence and that it depends upon the facts and
circumstances of each particular case. We also feel it just and proper to refer
to a leading decision of this court reported in State of which this court
pointed out certain category of cases by way of illustrations wherein the
inherent power under Section 482 of the Code can be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of justice.
The same are as follows :-
(1)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
(6)
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.
(7)
Where a criminal proceeding is manifestly attended with malafide 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.
7.
Keeping the aforesaid principles in mind and considering the decisions as
referred to hereinearlier, let us now apply them in the facts of the present
case. But before we do that, it would be apt for us to consider the findings
arrived at by the High Court for quashing the FIR which are as under: -
(i)
The complainant-wife left the marital house with her father and brother on 25th May, 2001. The Divorce Petition was filed by
the husband on the ground of mental cruelty on 31st July, 2001. It was only on 31st December, 2001 that the FIR for offences under
Sections 498A and 406 of IPC was lodged by the complainant-wife;
(ii) A
registered letter was sent to the appellant wife for receiving all her articles
on 13th August, 2001 which was duly received by the
father of the appellant;
(iii)
The family court also issued directions to the appellant to receive her
articles on 2nd
February, 2002 and the
same were declined by her;
(iv)
In view of the above and also in view of the detailed report submitted by the
investigating officer, even prima facie no offence under Section 498A and 406
IPC is made out against the respondent;
(v)
The conduct of the appellant wife was depreciable and there had been a
continuing effort by her of avoiding the proceedings before the Court;
(vi)
The appellant wife leveled false allegations against the Court itself apart
from adopting all sorts of unhealthy tactics by creating gimmicks and scenes in
the Court;
(vii)
Merely because one of the respondents is a judicial officer and others being
his family members, it did not preclude them from seeking justice from a court
of law;
(viii)
The High Court is empowered to quash the FIR to avoid undue harassment and
mental agony to the respondents, more so when the divorce petition is still
pending before the Family Court.
8.
From a plain reading of the findings arrived at by the High Court while
quashing the FIR, it is apparent that the High Court had relied on extraneous
considerations and acted beyond the allegations made in the FIR for quashing
the same in the exercise of its inherent powers under Section 482 of the Code.
We have already noted the illustrations enumerated in Bhajan Lals case and
from a careful reading of these illustrations, we are of the view that the allegations
emerging from the FIR are not covered by any of the illustrations as noted
hereinabove.
For
example, we may take up one of the findings of the High Court as noted herein
above. The High Court has drawn an adverse inference on account of the FIR being
lodged on 31st
December, 2001 while
the appellant was forced out of the matrimonial home on 25th May, 2001. In our view, in the facts and
circumstance of the case, the High Court was not justified in drawing an
adverse inference against the appellant- wife for lodging the FIR on 31st
December, 2001 on the ground that she had left the matrimonial home atleast six
months before that. This is because, in our view, the High Court had failed to
appreciate that the appellant and her family members were, during this period,
making all possible efforts to enter into a settlement so that the respondent
No.2- husband would take her back to the matrimonial home. If any complaint was
made during this period, there was every possibility of not entering into any
settlement with the respondent No.2-husband. It is pertinent to note that the
complaint was filed only when all efforts to return to the matrimonial home had
failed and the respondent No.2-husband had filed a divorce petition under
Section 13 of the Hindu Marriage Act, 1955. That apart, in our view, filing of
a divorce petition in a Civil Court cannot be a ground to quash criminal
proceedings under Section 482 of the Code as it is well settled that criminal
and civil proceedings are separate and independent and the pendency of a civil
proceeding cannot bring to an end a criminal proceeding even if they arise out
of the same set of facts. Such being the position, we are, therefore, of the
view that the High Court while exercising its powers under Section 482 of the
Code has gone beyond the allegations made in the FIR and has acted in excess of
its jurisdiction and, therefore, the High Court was not justified in quashing
the FIR by going beyond the allegations made in the FIR or by relying on
extraneous considerations.
9.
This takes us to the second question which merits our determination, namely
whether the High Court was entitled to consider the investigation report
submitted before it by four officers of the rank of Dy. Superintendent of
Police even before the same could be filed before the concerned Magistrate. As
noted herein earlier, a bare perusal of the judgment of the High Court would
also show that the High Court had relied on the investigation report in
quashing the FIR. Now, the question is whether the High Court while exercising
its powers under Section 482 of the Code was justified in relying on the
investigation report which was neither filed before the Magistrate nor a copy
of the same supplied to the appellant. In our view, the High Court has acted in
excess of its jurisdiction by relying on the investigation report and the High
Court was also wrong in directing the report to be submitted before it. It is
now well settled that it is for the investigating agency to submit the report
to the Magistrate. In this connection, we may refer to sub- section (2) of
Section 173 of the Code which runs as under:
(i)
As soon as it is completed the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report (not necessary therefore omitted). From a bare reading of this
provision, it cannot be disputed that after completion of the investigation,
the officer-in-charge of the police station shall forward the report not to the
High Court where the proceedings under Section 482 of the Code is pending but
to a Magistrate empowered to take cognizance of the offence on such police
report. Therefore, the High Court had acted beyond its power to direct the
investigating agency to file the said report before it in the exercise of power
under Section 482 of the Code. The procedure for submitting an investigation
report has been considered by this Court in Maharashtra [2003] 2 SCC 649. While considering the law on the question as to when
the report of the investigating agency shall be submitted before the Magistrate
where the case is pending, an observation [AIR 1968 SC117] was quoted with
approval by B.P.Singh, J. in M.C. Abrahams case (supra) with which we are
also in full agreement and which is as follows:
Then the question is, what is the position, when the Magistrate is dealing with
a report submitted by the police, under Section 173, that no case is made out
for sending up an accused for trial, which report, as we have already
indicated, is called, in the area in question, as a final report? Even in
those cases, if the Magistrate agrees with the said report, he may accept the
final report and close the proceedings.
But
there may be instances when the Magistrate may take the view, on a consideration
of the final report, that the opinion formed by the police is not based on a
full and complete investigation, in which case, in our opinion, the Magistrate
will have ample jurisdiction to give directions to the police, under Section
156(3), to make a further investigation. That is, if the Magistrate feels,
after considering the final report, that the investigation is unsatisfactory,
or incomplete, or that there is scope for further investigation, it will be
open to the Magistrate to decline to accept the final report and direct the
police to make further investigation under Section 156(3). The police, after
such further investigation, may submit a charge-sheet, or, again submit a final
report, depending upon the further investigation made by them. If ultimately,
the Magistrate forms the opinion that the facts, set out in the final report,
constitute an offence, he can take cognizance of the offence, under Section
190(1)(b), notwithstanding the contrary opinion of the police, expressed in the
final report.
The
function of the Magistracy and the police, are entirely different, and though,
in the circumstances mentioned earlier, the Magistrate may or may not accept
the report, and take suitable action, according to law, he cannot certainly
infringe (sic impinge) upon the jurisdiction of the police, by compelling them
to change their opinion, so as to accord with his view.
Therefore,
to conclude, there is no power, expressly or impliedly conferred under the
Code, on a Magistrate to call upon the police to submit a charge-sheet, when
they have sent a report under Section 169 of the Code, that there is no case
made out for sending up an accused for trial. This court in M.C.
Abrahams case (supra) observed in para 17 as under:
The
principle, therefore, is well settled that it is for the investigating agency
to submit a report to the Magistrate after full and complete investigation. The
investigating agency may submit a report finding the allegations substantiated.
It is also open to the investigating agency to submit a report finding no
material to support the allegations made in the first information report. It is
open to the Magistrate concerned to accept the report or to order further
enquiry. But what is clear is that the Magistrate cannot direct the investigating
agency to submit a report that is in accord with his views. Even in a case
where a report is submitted by the investigating agency finding that no case is
made out for prosecution, it is open to the Magistrate to disagree with the
report and to take cognizance, but what he cannot do is to direct the
investigating agency to submit a report to the effect that the allegations have
been supported by the material collected during the course of
investigation. In our view, applying the principles laid down in the case
of Abhinandan Jha (supra) and M.C.Abrahim (supra) as indicated herein above,
using the report of the investigating agency for quashing the FIR or a criminal
proceeding cannot be sustained. It was impermissible for the High Court to
entertain the report of the investigating agency before the same could be
forwarded and filed before the concerned Magistrate in compliance with Section
173(2) of the Code. In Union of India vs. Prakash P.Hinduja & Anr. [(2003) 6 SCC 195], this
Court in para 20 observed as follows :
Thus
the legal position is absolutely clear and also settled by judicial authorities
that the court would not interfere with the investigation or during the course
of investigation which would mean from the time of the lodging of the First
Information Report till the submission of the report by the officer-in-charge
of the police station in court under Section 173 (2) Code, this field being
exclusively reserved for the investigating agency. Therefore, in view of
our discussions made herein above, while exercising power under Section 482 of
the Code, it is not open to the High Court to rely on the report of the
investigating agency nor can it direct the report to be submitted before it as
the law is very clear that the report of the investigating agency may be
accepted by the Magistrate or the Magistrate may reject the same on
consideration of the material on record. Such being the position, the report of
the investigating agency cannot be relied on by the High Court while exercising
powers under Section 482 of the Code. Accordingly, we are of the view that the
High Court has erred in quashing the FIR on consideration of the investigation
report submitted before it even before the same could be submitted before the
Magistrate. For the reasons aforesaid, we are inclined to interfere with the
order of the High Court and hold that the High Court in quashing the FIR in the
exercise of its inherent powers under Section 482 of the Code by relying on the
investigation report and the findings made therein has acted beyond its
jurisdiction. For the purpose of finding out the commission of a cognizable
offence, the High Court was only required to look into the allegations made in
the complaint or the FIR and to conclude whether a prima facie offence had been
made out by the complainant in the FIR or the complaint or not.
10.
Before parting with this judgment, we may also remind ourselves that the power
under Section 482 of the Code has to be exercised sparingly and in the rarest
of rare cases. In our view, the present case did not warrant such exercise by
the High Court. For the reasons aforesaid, we are unable to sustain the order
of the High Court and the impugned order is accordingly set aside.
The
appeal is allowed to the extent indicated above. The learned Magistrate is
directed to proceed with the case in accordance with law. It is expected that
the Magistrate shall dispose of the criminal proceedings as expeditiously as
possible preferably within six months from the date of communication of this judgment.
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