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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).729-732 OF 2010

RAJIB RANJAN & ORS. …..APPELLANT(S)

VERSUS

R. VIJAYKUMAR …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

These appeals are filed by four appellants, who were

arrayed as accused persons in the complaint case No.183/2007 filed

by the respondent herein before the Court of Judicial Magistrate

No.II, Tiruchirapalli, Tamil Nadu. The complaint has been filed under

Sections 120-B, 468, 420 and 500 of the Indian Penal Code (for

short 'the IPC'). The learned Judicial Magistrate took cognizance of

the said complaint and summoned the appellants. The appellants

(who were arrayed as accused Nos.3, 4, 5 and 6) challenged the

said summoning orders and sought quashment of the complaint by

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filing petition under Section 482 of the Code of Criminal Procedure

(for short 'the Cr.P.C.) inasmuch as according to them the allegations

in the complaint did not make out any offence under the aforesaid

provisions of the IPC; the complainant had neither any locus standi

nor any legal status to prefer any such complaint; the appellants

being public servants and Gazetted officers of the State Government

of Chhattisgarh, no such criminal proceedings could be initiated

against them without prior sanction from the appointing authority as

per Section 197 of the Cr.P.C.; and the complaint was blatant misuse

and abuse of the process of Court which was filed by the

complainant after exhausting the civil remedies in which he had

failed. The High Court, after examination of the matter, has not

found any merit in any of the aforesaid contentions raised by the

appellants and, consequently, dismissed their petitions.

2. Before we advert to the submissions of the appellants, which are

mirror image of what was argued before the High Court, it would be

appropriate to traverse through the relevant facts and events leading

to the filing of the said complaint by the complainant. These are as

under:

The Chhattisgarh State Electricity Board (for short 'the

CSEB') issued an advertisement inviting tender (NIT) bearing No. T-

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136/2004 dated 02.06.2004 for its work at Hasedeo Thermal Power

Station (Korba West) towards Designing, Engineering, Testing,

Supply, Erection & Commission of HEA Ignition system. The

applications received there under were required to be processed in

three stages successively namely; Part-I (EMD); Part-II (Techno-

Commercial Criteria) and Part III (Price Bid). The respondent herein

submitted an application on 26.08.2004 as Chief Executive Officer of

M/s Control Electronics India (CEI) requesting for Tender Document.

The application was rejected on the ground that it was accompanied

by incomplete documents i.e. non-submission of documentary

evidence of past performance and experience of the respondent.

The respondent made a complaint dated 06.09.2004 against

appellant No. 3 herein alleging that the Tender Documents were not

issued to the respondent. It was followed by several letters

requesting for issuance of Tender Documents. He was informed that

rather than pressurising the appellants here or other officials, he

should furnish documents as per pre-qualifying condition of the

Tender. In response thereto, vide his letter dated 05.11.2004, the

respondent filed a copy of purchase order dated 28.01.2002 placed

by Jharkhand State Electricity Board (for short 'the JSEB') and

assured to supply other documentary evidence (performance report)

subsequently. On such assurance, the Tender Documents were

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issued to the respondent. The respondent vide his letter dated

08.12.2004, mentioned that the Performance Report was enclosed

in Part-II. However, the said report was not found enclosed and even

after repeated requests from the CSEB to furnish documents,

respondent did not fulfill the necessary requirement. As the

respondent did not submit the necessary documents, the CSEB

sought the information from the Chief Engineer of JSEB (arrayed in

the complaint as accused No.2) vide letter dated 10.12.2004 about

the performance of the respondent. Appellant No.2 herein was also

deputed to get the desired information from JSEB. After meeting the

officials of JSEB, appellant No.2 submitted his report stating that the

works carried out by the respondent were not satisfactory as many

defects were found therein. As per the appellants, even technical

expertise was sought from SE (ET&I) KW (CSEB) and found that the

respondent was not technically suitable as per the technical vetting

and comparative data of SE (ET&I) KW letter dated 04.02.2005. On

that basis, tender of the respondent was rejected. The appellants

submit that as an outburst, in not getting the Tender in his favour, the

respondent made complaints alleging irregularities to various fora

including the State Government, which ordered the CSEB to conduct

an enquiry. The CSEB submitted its report on 21.02.2006 stating

that there were no such irregularities and that the respondent had

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not furnished the necessary documents despite repeated requests.

At this stage, the respondent filed the Civil Suit (26-A/06) before the

Civil Judge Class-II, Korba against the CSEB. However, the

respondent moved an application seeking to withdraw the said suit.

In any case he did not appear on the date fixed and accordingly the

suit was dismissed for non-prosecution on 12.09.2006. The

respondent herein then filed a Writ Petition No.2951 of 2006 before

the Chhattisgarh High Court which was dismissed on 25.06.2007.

Even costs of Rs.25,000/- was imposed while dismissing the writ

petition with the observations that it was abuse of the process of

Court. Thereafter, SLP No.15897 of 2007 was preferred by the

respondent which also came to be dismissed vide order dated

14.09.2007. After the exhaustion of these remedies, albeit

unsuccessfully, the respondent filed a complaint before K.K. Nagar

P.S., Thirucharapalli, Tamil Nadu. The police authorities refused to

register the same on the ground that it is a civil dispute. It is,

thereafter, that the respondent filed the said Criminal Complaint

under Sections 120-B, 468, 420 & 500 IPC before the trial Court,

which was registered as C.C. No. 183/07 and the trial Court issued

summons to the appellants herein and accused No.1 (Successful

Bidder) & accused No. 2 (then Chief Engineer, JSEB). Petitions of

the appellants seeking quashing of the said complaint have been

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dismissed by the order of the High Court, which is impugned before

us.

3. A reading of the said complaint reveals the following broad

allegations levelled by the respondent:

(a) The respondent/complainant alleges that the appellants and

accused No.1 (Successful Bidder) & accused No. 2 (then

Chief Engineer, JSEB) had conspired secretly to disentitle the

complainant’s company by creating a discredit and for the said

purpose, they were in constant touch so as to create the said

Performance Report Cum Certificate, which was issued by

accused No.2.

(b)The respondent/complainant alleges that the said conspiracy

started with an agreement entered into by the 1

st

accused and

the appellants herein and they planned to fabricate the said

certificate dated 28.12.2004. For this purpose, accused No. 2

was approached so as to tailor the certificate totally

discrediting the CEI (Company of the Complainant) with

reference to supply and service relationship with Patratu

Thermal Power Station (for short 'the PTPS') and JSEB.

(c)The respondent/complainant alleges that the said Certificate

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cum Report is false, fabricated, motivated and malafide and

the same was contrary to the minutes of meeting that the

complainant and his officials had with the officials of PTPS and

JSEB. He further alleges that for the said reasons, the

accused No. 2 was demoted from his post.

(d)The respondent/complainant alleges that on suspicion of such

Certificate Cum Report, the complainant visited the CSEB and

on verifying about the same, he found that the said tender was

being given to Company of the 1

st

accused against the

Complainant’s Company and so he wrote a letter to the Chief

Secretary and Chairman of JSEB for verifying and cancelling

such certificate. He also wrote to many officials of the CSEB.

(e)The respondent/complainant alleges that the said Certificate is

perse defamatory as against the complainant’s company and is

a crude attempt to favour accused No.1 by spoiling the image

of the Complainants company. He further alleges that this

caused a wrongful loss to the complainant’s company by

robbing its due chance to get a contract for the Boiler Plant

Units at Korba.

4. After recording preliminary evidence, the Magistrate took cognizance

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of the complaint which order was challenged in the High Court.

Before the High Court, the appellants, inter alia, contended that the

allegations made by the respondent under Sections 120-B, 468, 420

& 500 of IPC pertained to the award of tender in favour of accused

No.1 in which the respondent was also a competing party. It was

also pleaded that the said complaint has been lodged as an

afterthought, having failed in the civil suit for injunction which was

dismissed and likewise, after unsuccessful attempt to challenge the

award of contract in favour of accused No.1 as the writ petition of the

respondent was dismissed by the High Court. Thus, the lodging of

complaint before Judicial Magistrate-II, Tiruchirapalli was nothing but

abuse of process of law. The appellants also contended that the

respondents herein had no locus standi nor any legal status to prefer

the said complaint, as CEI is not a registered company, having a

legal entity. The appellants further relied on Naresh Kumar Madan

v. State of M.P., (2007) 4 SCC 766 wherein it has been held that an

employee working in the Electricity Board is covered under the

definition of ‘Public Servant’ and State of Maharashtra v. Dr.

Budhikota Subbarao, (1993) 2 SCC 567 for the proposition that the

absence of sanction order from the appropriate authority under

Section 197 Cr.P.C for prosecuting a public servant, vitiates the

proceedings.

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5. The respondent refuted the aforesaid submissions by arguing that

the appellants herein had deliberately conspired and had committed

the offences against the complainant and therefore he has a right to

lodge a complaint for the offences committed by the appellants along

with accused No. 2 (Chief Engineer, JSEB) in rejecting the tender

submitted by the complainant with a view to accept the tender of the

1

st

accused. It was argued that they conspired and created false

document with an idea of rejecting the claim of the complainant. The

respondent further submitted that complainant's locus standi as a

company was not questioned in the earlier proceedings before the

Chhattisgarh High Court and that the Judicial Magistrate had applied

his mind and after satisfying himself that the complainant/respondent

has got legal status to lodge the said complaint, had taken

cognizance of the offences committed by the accused persons. It

was also contended that the question of obtaining sanction under

Section 197 Cr.P.C. will not arise in so far as the present complaint is

concerned, as the accused are charged for conspiracy, cheating,

criminal breach of trust and defamation. He further submitted that

his allegation in the complaint pertained to the fabrication of the

Certificate-cum-Report dated 28.12.2004 which was used against

him in rejecting his tender and 1

st

accused was favoured with the

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award of work. Therefore, they had committed offences against the

complainant and damaged the reputation of the respondent/

complainant.

6. The High Court while dismissing the petition of the appellants

recorded that:

(a) As far as mandatory provisions of Section 197 Cr.P.C is

concerned, the High Court accepted that the appellants are

‘Public Servants’. It also observed that if the accusation against

the appellants under Sections 120-B, 468, 420 & 500 IPC are

connected with the discharge of their duty viz. if the said acts

had reasonable connection with discharge of his duty then

applicability of Section 197 cannot be disputed. However, on

going through the allegations in the complaint, the High Court

held that even though the appellants are “Public Servant’, the

alleged offences committed by them are cognizable offences

are not in discharge of their normal duties, in which component

of criminal breach of trust is found as one of the elements and

hence the provisions of Section 197 Cr.P.C. are not attracted.

(b)It has also been observed that the evidence regarding the

allegations made in the complaint have to be recorded and

gone into by the trial court after the evidence have been

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adduced by the complainant. It is only thereafter the lower

Court, can decide as to whether the allegations about the

falsity of the Certificate with conspiracy of accused No. 2 and

the appellants herein are correct or not.

7. It is clear from the above that primarily two questions arise for

consideration namely:

(a)Whether prior sanction of the competent authority to prosecute

the appellants, who are admittedly public servants, is

mandatory under Section 197 of the Code?

(b)Whether, on the facts of this case, the complaint filed by the

respondent is motivated and afterthought, after losing the

battle in civil litigation and amounts to misuse and abuse of

law?

We would like to remark that having regard to the facts of

this case the two issues are interconnected and narratives would be

overlapping, as would become apparent when we proceed with the

discussion hereinafter.

8. For this purpose, we would first like to point out that the High Court

has itself taken note of the judgment of this Court in the Case of

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Naresh Kumar Madan (supra) to hold that the appellants are

covered by the description of public servants within the meaning of

Section 21 of IPC. Following observations therefrom have been

quoted:

“The officers of the State Electricity Board are required to

carry out public functions. They are public authorities.

Their action in one way or the other may entail civil or

evil consequences to the consumers of electrical

energy. They may prosecute a person. They are

empowered to enter into the house of the Board's

consumers. It is only for proper and effective

exercise of those powers, the statute provides that

they would be public servants, wherefore a legal

fiction has been created in favour of those

employees, when acting or purported to act in

pursuance of any of the provisions of the Act within

the meaning of Section 21 of the Indian Penal Code.

Indian Penal Code denotes various persons to the

public servants. It is, however, not exhaustive. A

person may be public servant in terms of another

statute. However we may notice that a person, who,

inter alia, is in the service or pay of the Government

established by or under a Central, Provincial or State

Act, would also come within the purview thereof.

Section 2 (1) (c) of the 1988 Act also brings within its

embrace a person in the service or pay of a

corporation established by or under a Central Act.”

9. The question is of the applicability of Section 197 of the Code. Said

provision with which we are concerned is reproduced below:

“Prosecution of Judges and public servant. (1) When any

person who is or was a Judge or Magistrate or a public

servant not removable from his office save by or with the

sanction of the Government is accused of any ofence

alleged to have been committed by him while acting or

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purporting to act in the discharge of his official duty, no

Court shall take cognizance of such offence except with

the previous sanction-

(a) In the case of a person who is employed, or as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of a State, of the State Government.”

10. This provision makes it clear that if any offence is alleged to have

been committed by a public servant who cannot be removed from

the office except by or with the sanction of the Government, the

Court is precluded from taking cognizance of such offence except

with the previous sanction of the competent authority specified in

this provision.

11. The sanction, however, is necessary if the offence alleged against

public servant is committed by him “while acting or purporting to act

in the discharge of his official duties”. In order to find out as to

whether the alleged offence is committed while acting or purporting

to act in the discharge of his official duty, following yardstick is

provided by this Court in Dr. Budhikota Subbarao (supra) in the

following words:

“If on facts, therefore, it is prima facie found that the act or

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omission for which the accused was charged had

reasonable connection with discharge of his duty then it

must be held to be official to which applicability of Section

197 of the Code cannot be disputed.”

12. This principle was explained in some more detail in the case of

Raghunath Anant Govilkar v. State of Maharashtra, which was

decided by this Court on 08.02.2008 in SLP (Crl.) No.5453 of 2007,

in the following manner:

“On the question of the applicability of Section 197 of the

Code of Criminal Procedure, the principle laid down in two

cases, namely, Shreekantiah Ramayya Munipalli v. State

of Bombay and Amrik Singh v. State of Pepsu was as

follows:

It is not every offence committed, by a public servant that

requires sanction for prosecution under Section 197 (1) of

Criminal Procedure Cod; nor even every act done by him

while he is actually engaged in the performance of his

official duties; but if the act complained of is directly

concerned with his official duties so that, if questioned, it

could be claimed to have been done by virtue of the

office, then sanction would be necessary.

The real question therefore, is whether the acts

complained of in the present case were directly

concerned with the official duties of the three public

servants. As far as the offence of criminal conspiracy

punishable under Sections 120-B read with Section 409 of

the Indian Penal Code is concerned and also Section 5(2)

of the Prevention of Corruption Act, are concerned they

cannot be said to be of the nature mentioned in Section

197 of the Code of Criminal Procedure. To put it shortly, it

is no part of the duty of a public servant, while discharging

his official duties, to enter into a criminal conspiracy or to

indulge in criminal misconduct. Want of sanction under

Section 197 of the Code of Criminal Procedure is,

therefore, no bar.”

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13. Likewise, in Shambhoo Nath Misra v. State of U.P. and others,

(1997) 5 SCC 326, the Court dealt with the subject in the following

manner:

“5. The question is when the public servant is alleged

to have committed the offence of fabrication of record

or misappropriation of public fund etc. can be said to

have acted in discharge of his official duties? It is not

the official duty of the public servant to fabricate the

false record and misappropriate the public funds etc.

in furtherance of or in the discharge of his official

duties. The official capacity only enables him to

fabricate the record or misappropriate the public fund

etc. It does not mean that it is integrally connected or

inseparably interlinked with the crime committed in

the course of same transaction, as was believed by

the learned Judge. Under these circumstances, we

are of the opinion that the view expressed by the High

Court as well as by the trial Court on the question of

sanction is clearly illegal and cannot be sustained.”

14. The ratio of the aforesaid cases, which is clearly discernible, is that

even while discharging his official duties, if a public servant enters

into a criminal conspiracy or indulges in criminal misconduct, such

misdemeanor on his part is not to be treated as an act in discharge

of his official duties and, therefore, provisions of Section 197 of the

Code will not be attracted. In fact, the High Court has dismissed the

petitions filed by the appellant precisely with these observations

namely the allegations pertain to fabricating the false records which

cannot be treated as part of the appellants normal official duties.

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The High Court has, thus, correctly spelt out the proposition of law.

The only question is as to whether on the facts of the present case,

the same has been correctly applied. If one looks into the

allegations made in the complaint as stand alone allegations,

probably what the High Court has said may seem to be justified.

However, a little deeper scrutiny into the circumstances under which

the complaint came to be filed would demonstrate that allegation of

fabricating the false record is clearly an afterthought and it becomes

more than apparent that the respondent has chosen to level such a

make belief allegation with sole motive to give a shape of criminality

to the entire dispute, which was otherwise civil in nature. As noted

above, the respondent had in fact initiated civil action in the form of

suit for injunction against the award of the contract in which he

failed. Order of civil court was challenged by filing writ petition in the

High Court. Plea of the respondent was that the action of the

Department in rejecting his tender and awarding the contract to

accused No.1 was illegal and motivated. Writ petition was also

dismissed with cost. These orders attained finality. It is only

thereafter criminal complaint is filed with the allegation that accused

No.1 is favoured by creating a false certificate dated 28.12.2004.

We would dilate this discussion with some elaboration, hereinafter.

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15. As already pointed above, tender was floated by the CSEB and the

CEI herein was one of the parties who had submitted its bid through

the respondent. However, tender conditions mentioned certain

conditions and it was necessary to fulfill those conditions to become

eligible to submit the bid and have it considered. As per the

appellants, tender of the respondent was rejected on the ground that

plant and equipment erected by the respondent at Patratu Thermal

Power Station, Patratu, Jharkhand was not functioning well. This

information was received by the Tender Committee from JSEB.

When the report was sought by CSEB in December, 2004, the

Tender Committee took the view that the respondent did not fulfill the

pre-qualifying conditions and rejected his tender. Before doing so,

the respondent was asked time and again to send the performance

report which he had promised but he failed to comply even when he

had assured to do the needful. In fact, that itself was sufficient to

reject that bid of the respondent as it was non compliant with the

tender conditions. Still, in order to verify the claim of the respondent

and to consider his bid on merits, though not strictly required, the

appellant R.C. Jain was deputed to get the desired information from

JSEB. He met the officials of JSEB and submitted his report to the

effect that the works carried out by the respondent at Patratu

Thermal Power Station was not satisfactory. Even, Shri B.M. Ram,

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General Manager of the said Power Station furnished his report

dated 28.12.2004 wherein it was summed up that due to the defects

in the scanning system, supplied by the respondent, generation had

been adversely effected and the said Electricity Board was not

satisfied with the equipment supplied by the respondent. In spite of

the aforesaid material, the tender Committee acted with caution and

even the technical expertise was sought. Even the report of the

technical experts went against the respondent as it opined that the

respondent was not technically suitable on the technical vetting and

comparative data. On the basis of the aforesaid material, the

respondent's tender document was not opened and returned and he

was informed accordingly. All this has clearly happened in

furtherance of and in discharge of the official duties by the appellant.

In the facts of the present case, we are of the view that allegations of

fabricating the records are mischievously made as an afterthought,

just to give colour of criminality to a civil case.

16. As pointed out above, the respondent had even filed the civil suit

challenging the decision of the Electricity Board in returning his

tender documents on the ground that the same were not as per pre-

qualifying conditions of the tender. He had thus resorted to the civil

remedy. However, he failed therein as for the reasons best known to

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him, he sought to withdrew the same and accordingly the same was

dismissed for non-prosecution. It is trite that once the suit is

withdrawn, that acts as constructive res judicata having regard to the

provision of Order XXIII Rule 1 of the Code of Civil Procedure. Also,

when suit is dismissed under Order IX Rule 8 CPC, fresh suit under

Order IX Rule 9 is barred. The legal implication would be of that the

attempt of the respondent in challenging the decision of the Tender

Committee in not considering his tender remained unfaulted. Even

when the respondent himself invited order of dismissal in the civil

suit, curiously enough, he filed a writ petition against the order

passed in the civil court dismissing his suit for non-prosecution, but

the same was also dismissed by the High Court on 25.06.2007 and

even a cost of Rs.25,000/- was imposed on the respondent as the

said writ petition was perceived by the High Court as 'abuse of

process of the court'. SLP preferred by the respondent was also

dismissed by this Court on 14.09.2007. It is only thereafter the

respondent filed the criminal complaint out of which present

proceedings emanate. No doubt, the respondent in his complaint

has right to colour his complaint by levelling the allegations that the

appellants herein fabricated the records. However, on the facts of

this case, it becomes difficult to eschew this allegation of the

respondent and we get an uncanny feeling that the contents of FIR

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with these allegations are a postscript of the respondent after losing

the battle in civil proceedings which were taken out by him

challenging the action of the Department in rejecting his tender.

When he did not succeed in the said attempt, he came out with the

allegations of forgery. It is thus becomes clear that the action of the

respondent in filing the criminal complaint is not bonafide and

amounts to misuse and abuse of the process of law.

17. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this

Court has laid down principles on which Court can quash the

criminal proceedings under Section 482 of Cr.P.C. These are as

follows:

“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.

(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

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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 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.

(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.”

Principle Nos.6 and 7 are clearly applicable in the present case.

18. Having regard to the circumstances narrated and explained above,

we are also of the view that attempt is made by the respondent to

convert a case with civil nature into criminal prosecution. In a case

like this, High Court would have been justified in quashing the

proceedings in exercise of its inherent powers under Section 482 of

the Code. It would be of benefit to refer to the judgment in the case

of Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC

736, wherein the Court adversely commented upon this very

tendency of filing criminal complaints even in cases relating to

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commercial transaction for which civil remedy is available is

available or has been availed. The Court held that the following

observations of the Court in this behalf are taken note of:

“13. While on this issue, it is necessary to take notice of a

growing tendency in business circles to convert purely

civil disputes into criminal cases. This is obviously on

account of a prevalent impression that civil law remedies

are time consuming and do not adequately protect the

interests of lenders/creditors. Such a tendency is seen in

several family disputes also, leading to irretrievable

breakdown of marriages/families. There is also an

impression that if a person could somehow be entangled

in a criminal prosecution, there is a likelihood of imminent

settlement. Any effort to settle civil disputes and claims,

which do not involve any criminal offence, by applying

pressure through criminal prosecution should be

deprecated and discouraged. In G. Sagar Suri v. State

of U.P., (2000) 2 SCC 636, this Court observed: (SCC p.

643, para 8)

“It is to be seen if a matter, which is essentially of a civil

nature, has been given a cloak of criminal offence.

Criminal proceedings are not a short cut of other

remedies available in law. Before issuing process a

criminal court has to exercise a great deal of caution. For

the accused it is a serious matter. This Court has laid

certain principles on the basis of which the High Court is

to exercise its jurisdiction under Section 482 of the Code.

Jurisdiction under this section has to be exercised to

prevent abuse of the process of any court or otherwise to

secure the ends of justice.”

14. While no one with a legitimate cause or grievance

should be prevented from seeking remedies available in

criminal law, a complainant who initiates or persists with a

prosecution, being fully aware that the criminal

proceedings are unwarranted and his remedy lies only in

civil law, should himself be made accountable, at the end

of such misconceived criminal proceedings, in

accordance with law. One positive step that can be taken

by the courts, to curb unnecessary prosecutions and

harassment of innocent parties, is to exercise their power

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under Section 250 CrPC more frequently, where they

discern malice or frivolousness or ulterior motives on the

part of the complainant. Be that as it may.”

19. In Inder Mohan Goswami and another v. State of Uttaranchal

and others, (2007) 12 SCC 1, the Court reiterated the scope and

ambit of power of the High Court under Section 482 of the Code in

the following words:

“23. This Court in a number of cases has laid down the

scope and ambit of courts' powers under Section 482

CrPC. Every High Court has inherent power to act ex

debito justitiae to do real and substantial justice, for the

administration of which alone it exists, or to prevent abuse

of the process of the court. Inherent power under Section

482 CrPC can be exercised:

(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.

24. Inherent powers under Section 482 CrPC though

wide have to be exercised sparingly, carefully and with

great caution and only when such exercise is justified by

the tests specifically laid down in this section itself.

Authority of the court exists for the advancement of

justice. If any abuse of the process leading to injustice is

brought to the notice of the court, then the could would be

justified in preventing injustice by invoking inherent

powers in absence of specific provisions in the statute.

Discussion of decided cases

25. Reference to the following cases would reveal that

the courts have consistently taken the view that they must

use this extraordinary power to prevent injustice and

secure the ends of justice. The English courts have also

used inherent power to achieve the same objective. It is

generally agreed that the Crown Court has inherent power

to protect its process from abuse. In Connelly v. DPP, 1

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1964 AC 1254 Lord Devlin stated that where particular

criminal proceedings constitute an abuse of process, the

court is empowered to refuse to allow the indictment to

proceed to trial. Lord Salmon in DPP v. Humphrys, 1977

AC 1 stressed the importance of the inherent power when

he observed that it is only if the prosecution amounts to

an abuse of the process of the court and is oppressive

and vexatious that the judge has the power to intervene.

He further mentioned that the court's power to prevent

such abuse is of great constitutional importance and

should be jealously preserved.

46. The court must ensure that criminal prosecution is not

used as an instrument of harassment or for seeking

private vendetta or with an ulterior motive to pressurise

the accused. On analysis of the aforementioned cases,

we are of the opinion that it is neither possible nor

desirable to lay down an inflexible rule that would govern

the exercise of inherent jurisdiction. Inherent jurisdiction

of the High Courts under Section 482 CrPC though wide

has to be exercised sparingly, carefully and with caution

and only when it is justified by the tests specifically laid

down in the statute itself and in the aforementioned

cases. In view of the settled legal position, the impugned

judgment cannot be sustained.”

20. As a result, these appeals are allowed. Order of the High Court is

set aside. Consequently, cognizance taken by the learned

Magistrate and orders summoning the appellants as accused is

hereby set aside resulting into the dismissal of the said complaint.

There shall however be no order as to costs.

…......................................J.

(J. Chelameswar)

…......................................J.

(A.K. Sikri)

New Delhi;

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October 14, 2014.