State of Punjab &
Ors. Vs. Inder Mohan Chopra & Ors.  INSC 308 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 288 OF 2009
(Arising out of S.L.P (Crl.) No. 3854 of 2007) State of Punjab & Ors.
.Appellants Versus Inder Mohan Chopra & ors. .Respondents With CRIMINAL
APPEAL NO. 289 OF 2009 (Arising out of S.L.P (Crl.) No. 4261 of 2007)
DR. ARIJIT PASAYAT,
in these appeals is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court allowing two petitions filed under Section 482 of the Code
of Criminal Procedure, 1973 (in short the `Cr.P.C.'). Respondent had made
prayer that the FIR No. 152 dated 12.7.2002 registered under Section 36 of the
Punjab Apartment and Property Regulations, 1995 (in short the `Regulation') at
police station Sultanwind, Amritsar,should be quashed. The complaint was filed
on the premises that the total area alleged to have sold was 1861.16 Sq. Yards
which was jointly held by four real brothers and the individual shares comes to
465.29 Sq. Yards. It was alleged that the accused persons had sold joint family
property by conveying land into an unauthorised colony in violation of the
provisions of the Act and each one of them was therefore guilty of offence
punishable under Section 36 of the Act read with Section 120 (B) of the Indian
Penal Code, 1860 (in short the `IPC'). The respondents in the petition filed
before the High Court stated that the individual shares come below 465.29 sq.
yards and, therefore, there was no violation. The stand of the appellant before
the High Court was that by selling 1861.16 Sq. Yards in a joint Khasra to
different purchasers, the accused person had violated the provisions of the Act
and, therefore, they were rightly proceeded against.
Reference was made
under Section 2(k) of the Act which shows that the expression `Person' includes
a `company, firm, cooperative society, joint family and `body of persons'
whether incorporated or not. Therefore, it was pleaded that the joint holders
are to be treated as one person in the eye of law in such prosecutions. The
High Court accepted the stand of the respondents by holding that even if the
property continued to be joint, it cannot be said that the venders had sold
anything more than their respective shares.
2(i) of the Act reads as follows:
"Colony - Colony
means an area of land not less than 1000 sq.
meters divided or
proposed to be divided into plots for residential, commercial or industrial
purpose, but does not include any area of abadi deh of the village falling
inside its Lallakir or phirny or any area of land divided or proposed to be
counsel for the appellant submitted that the accused persons have accepted that
they had sold the land in the year 1996 and, therefore, there was clear
violation. It is submitted that the High Court had not kept in view the
parameters of Section 482 Cr.P.C.
counsel for the respondent on the other hand supported the impugned order of
the High Court. It was also submitted that no offence was made out.
appears that the High Court came to an abrupt conclusion that if the property
continues to be joint it cannot be said that the vendor sold anything more than
their respective shares.
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.
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
(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.
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
"(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
(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.
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."
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 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) and State of Andhra Pradesh v.
Bajjoori Kanthaiah and Anr. [2008(11)JT 574].
appears that the High Court has come to an abrupt conclusion that the
individual shares could be less than 1000 Sq.m. That is not the relevant aspect
for consideration of the issues raised. Therefore, the impugned orders of the
High Court are unsustainable and are quashed. We make it clear that we have not
expressed any opinion on the merits of the cases which are to be adjudicated in
appeals are allowed.
(Dr. ARIJIT PASAYAT)
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