State of A.P. Vs.
Bajjoori Kanthaiah & ANR [2008] INSC 1784 (20 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of S.L.P.(Crl.) No.2625 of 2006) State of Andhra Pradesh ...Appellant
Versus Bajjoori Kanthaiah and Anr. ...Respondents With Crl. A.
No............../2008 @ SLP(Crl.) No.2627/2006 Crl. A. No............../2008 @
SLP(Crl.) No.2631/2006 Crl. A. No............../2008 @ SLP(Crl.) No.3372/2006
Crl. A. No............../2008 @ SLP(Crl.) No.3371/2006 Crl. A.
No............../2008 @ SLP(Crl.) No.2892/2006 Crl. A. No............./2008 @
SLP(Crl.) No.3639/2006 Crl. A. No............/2008 @ SLP(Crl.) No.5841/2008
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted in all these cases.
2.
By
the impugned judgments the High Court of Andhra Pradesh has quashed the FIR
filed by Prohibition and Excise officers alleging commission of offences
punishable 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 was quashed.
3.
In
support of the appeals, learned counsel appearing for the State of Andhra
Pradesh submitted that the High Court's approach is clearly erroneous. These
are not cases where there was total absence of 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. The exercise of power under Section 482 of the Code is
clearly indefensible.
4.
There
is no appearance on behalf of the respondents in spite of service of notice.
5.
Exercise
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, (i) to give effect to an order
under the Code, (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. 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.
6.
In
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:
(i) where it
manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
(ii) where 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;
(iii) 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.
7.
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 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,
needless harassment. 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 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:
"(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 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.
(4) Where 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.
(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 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."
8.
As
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).
9.
In
all these cases there was either statements of witnesses or seizure of black
jaggery and olum materials being used for manufacturing illicit distilled
liquor which factors cannot be said to be without relevance. Whether 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
(supra).
10.
Ultimately,
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.
11.
Keeping
in view the principles of law as enunciated above, the action of the High Court
in quashing the FIR in each case cannot be maintained and are set aside.
12.
Learned
counsel for the State submitted that there shall be early investigation in the
matter and submission of Report under Section 173 of the Code shall be done
without delay and in any event, not later than the end of February, 2009. We
make it clear that we have not expressed any opinion on the merits of the case.
13.
All
the appeals are allowed, as indicated above.
...........................................J.
(Dr. ARIJIT PASAYAT)
............................................J.
(Dr. MUKUNDAKAM SHARMA)
New
Delhi:
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