Renu Kumari Vs. Sanjay
Kumar & Ors [2008] Insc 333 (3 March 2008)
Dr. Arijit Pasayat & C.K.
Thakker & Lokeshwar Singh Panta
Criminal Appeal No 426 of
2008 (Arising out of Slp (Crl.) No.2314 of 2006) Dr. Arijit Pasayat, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of
the Patna High Court quashing the proceedings initiated against the respondents
1 to 7, in purported exercise of power under Section 482 of the Code of
Criminal Procedure, 1973 (in short the 'Cr.P.C.'). A prayer was made before
learned Sessions Judge, Patna to quash the proceedings in Criminal Revision No.
817 of 2001. Learned S.D.J.M., Patna in Pirbahore PHB Case No. 120 of 2000 had
rejected the prayer of discharge made by the aforesaid respondents. The prayer
was made in terms of Section 239 Cr.P.C.
3. Background facts in a nutshell are as follows:
Appellant was married to respondent No. 3 Rajesh Kumar on 1.7.1998. Alleging
that she was being harassed and tortured both mentally and physically for
having not met the dowry demands, complaint was made alleging commission of
offences punishable under Section 498 A of the Indian Penal Code, 1860 (in
short the 'IPC') and Sections 3 & 4 of the Dowry Prohibition Act, 1961(in
short the 'Act'). Police registered FIR No. 120 of 2000 in Pirbahore Police
Station. Appellant's father-in-law filed a complaint alleging assault and
criminal trespass by the appellant. Another complaint was filed alleging an
attempt to kidnap. A suit for divorce was filed by the husband. Appellant
entered appearance in the matrimonial suit which was filed on 15.3.2000.
Learned Principal Judge, Family Court directed grant of maintenance at the rate
of Rs.2000/-p.m. and the cost of litigation to be paid to the appellant.
Respondent's father in law filed Misc. Case No. 12 of 2001 questioning correctness of the maintenance order on the
ground that the respondent's husband has no share in the ancestral property and
maintenance cannot be paid out of it. Charge sheet was filed on 12.8.2000. An
application for discharge in terms of Section 239 Cr.P.C. was filed on
28.8.2001. The prayer was rejected on 7.9.2001 by learned SDJM. As noted above
Learned Sessions Judge, Patna dismissed the Revision Application being Criminal
Revision No. 817 of 2001. Respondents filed a Criminal Misc. Petition under
Section 482 Cr.P.C. By the impugned order the prayer has been accepted. To
complete the narration it needs to be noted that the matrimonial case No. 49 of
2000 filed by the respondent-husband was dismissed on 12.10.2004. Learned Single Judge after referring to a judgment of this Court in State of
Haryana & Ors. v. Ch. Bhajan Lal & Ors. (AIR 1992 SC 604) held that the
present case is a clear example of malafide where the proceedings have been
maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite them due to private and personal grudge.
Reference has been made to the matrimonial case stating that the same was filed
earlier to the lodging of the FIR.
4. In support of the appeal learned counsel for the appellant submitted that
the parameters for exercise of jurisdiction under Section 482 Cr. P. C. have not
been kept in view by learned Single Judge, further he lost sight of the fact
that the Matrimonial Case No. 49 of 2000 was dismissed long before the disposal
of the case before the High Court. The matrimonial suit was dismissed on
12.10.2004 whereas the impugned judgment has been passed on 19.12.2005.
5. There is no appearance on behalf of the respondents in spite of service
of notice.
6. Exercise of power under Section 482 Cr.P.C. 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 Cr.P.C. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect to an order
under Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to
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
jurisdiction. No legislative enactment dealing with procedure can provide for
all cases that may possibly arise. The 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 recognises 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 the course
of administration of justice on the principle of "quando lex aliquid alicui
concedit, concedere videtur 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 the 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 the 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 the
power to prevent 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
exercise of the powers the court would be justified to quash any proceeding if
it finds that initiation/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 report, the court may examine the
question of fact. When a report is sought to be quashed, it is permissible to
look into the materials to assess what the report has alleged and whether any
offence is made out even if the allegations are accepted in toto.
7. In R.P. Kapur v. State of Punjab (1960 (3) SCR 388) this Court summarised
some categories of cases where inherent power can and should be exercised to
quash the proceedings:
-
Where it manifestly appears that there
is a legal bar against the institution or continuance e.g. want of sanction;
-
where the allegations in the first
information report or complaint taken at their face value and accepted in their
entirety do not constitute the offence alleged;
-
where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to prove
the charge. (SCR p.393)
8. In 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 CrPC, 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 should not be an instrument of oppression, or, needless
harassment. The court 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 CrPC 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
-
SCC 335). A note of caution was, however, added
that the power should be exercised sparingly and that too in the rarest of rare
cases. The illustrative categories indicated by this Court are as follows: (SCC
pp.378-79, para 102) "102. (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.
-
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 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.
-
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.
-
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 Act concerned (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 Act
concerned, 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 personal grudge."
9. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C.
are very wide and the very plenitude of the power requires great caution in its
exercise. The 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. The 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. 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. 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 the court which decides the fate
of the accused person. The allegations of mala fides against the informant are
of no consequence and cannot by themselves be the basis for quashing the
proceedings. [See Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995(6) SCC 194) , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), State of
U.P. v. O.P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada
(1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 (8)
SCC 728) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259)]
10. The above position was again reiterated in State of Karnataka v. M.Devendrappa
(2002(3) SCC 89), State of M.P. v. Awadh Kishore Gupta (2004(2) SCC 691) and State of Orissa v. Saroj Kr. Sahoo (2005(13) SCC 540).
11. In view of the position of law highlighted above the impugned order is
indefensible and is set aside.
12. The appeal is allowed but without any order as to costs.
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