Reshma Bano Vs. State of
Uttar Pradesh & Ors [2008] INSC 334 (3 March 2008)
Dr. Arijit Pasayat & P.
Sathasivam & Aftab Alam
Criminal Appeal No 425 of
2008 (Arising out of S.L.P. (Crl.) No. 7342 of 2007 Dr. Arijit Pasayat, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of
Allahabad High Court dismissing the application filed by the appellant for
exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (in
short 'the Code') and Article 226 of the Constitution of India, 1950 (in short
the 'Constitution'). The prayer in the writ petition was to quash the
proceedings initiated on the basis of FIR Crime No.316 of 2007, P.S. Phoolpur,
Allahabad. It was submitted before the High Court that the FIR did not disclose
any offence so far as the appellant is concerned. It was pointed out that the
appellant was the sister of the accused no.1 Afzal who was alleged to have
committed the offence of kidnapping etc. The High Court dismissed the
application holding that on reading of the FIR, cognizable offence is made out.
3. In support of the appeal learned counsel for the appellant submitted that
the only reference made to the appellant in the FIR reads as follows:
"Questioning from the sister of the boy, Smt. Reshma Bano, might be
advantageous".
4. This does not indicate commission of any offence rather puts the
appellant in the position of a witness. Even if it is conceded for the sake of
arguments but not admitted that commission of any cognizable offence is made out
against others, so far as the appellant is concerned, there is not even a scarp
of material and not even allegation of overt act.
5. There is no appearance on behalf of the respondent in spite of service of
notice.
6. The parameters where exercise of inherent power under Section 482 of the
Code can be exercised either on proof of abuse of process of any Court or
otherwise to secure the ends of justice have been highlighted in several cases.
In State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp. (1) SCC 335),
it was held that though it will not be possible to lay down any precise,
clearly defined sufficiently channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases wherein such
power should be exercised, certain illustrative cases were indicated.
They 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 cognizabe 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 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 personal grudge.
7. A note of caution was indicated in the following words:
"103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court will
not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR or the complaint
and that the extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or caprice."
8. The case at hand falls within the category I of the illustrations given
in Bhajan Lal's case (supra). Therefore, we quash the proceedings relatable to
FIR no.316 of 2007 far as the appellant is concerned. In other words, on the
basis of the existing materials the appellant shall not be treated to be accused.
It is, however, open to the Investigating Agencies to examine her as a witness.
It is, further made clear that we have quashed the proceedings vis-`-vis the
appellant only on the basis of the existing material.
9. The appeal is allowed.
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