Page 1 Crl.A.@S.L.P.(Crl.)Nos.300-302/13

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 285-287 OF 2015

[Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]

Sonu Gupta …..Appellant

Versus

Deepak Gupta & Ors.

…..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1.Leave granted.

2.The parties have been heard in detail and they have also

filed written submissions. Appellant is wife of respondent no.1

and is complainant in Criminal Complaint No.1213/2011 before

Court of Judicial Magistrate, First Class, Raipur. The respondents

are accused in this Complaint Case which was filed on 07.12.2010

for alleged offences under Section 464, 468 and 471 of the Indian

Penal Code (IPC).

3.The appellant and respondent no.1 are undergoing a

protracted matrimonial dispute. It is the case of appellant as well

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as respondent no.1 that they were married in February 1997. A

girl child was born to the appellant in May 1998 and in 2001 the

appellant gave informations on various dates to several police

authorities regarding alleged torture and harassment inflicted on

her by respondent nos.1 to 8 for dowry as well as for giving birth

to a girl child. It is appellant’s case that in April 2001 itself there

was pressure by the common relatives and friends leading to

appellant withdrawing her allegations against respondent no.1

who in turn withdrew Divorce Petition No.496/2000 and the same

was dismissed as withdrawn by order of Additional District Judge,

Delhi dated 30

th

April 2001. The differences between the spouses

got settled amicably in April-May 2001. The appellant gave birth

to another girl child in August 2002 much to the dislike of

accused persons.

4.The substance of the accusation in the instant complaint

case is that anticipating legal action by the appellant against

renewed mental torture and harassment by the respondent no.1

and his other relations named as accused, as a stratagem and

outcome of a conspiracy, one of her earlier letters of complaint to

some police officials which had been withdrawn by the appellant

in April-May 2001, was changed and tampered as per

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convenience and a photocopy of such undated complaint making

out a weak case against the respondents which was bound to fail,

was got registered at the instance of the accused persons

themselves with the help of some police officials as Criminal Case

(FIR No.73/2002) on 06.10.2002 in the Mahila Thana, Raipur by

the Town Inspector of this Thana under pressure of accused no.9,

Additional Director General of Police, PHQ, Raipur. According to

the complaint petition, the appellant informed the concerned

court that the FIR No.73/2002 was neither filed by her nor signed

by her and this FIR facilitated her husband and his relations who

were accused to obtain anticipatory bail not only in FIR

No.73/2002 but also in the case genuinely filed by the appellant

against accused nos.1 to 8 under Sections 498A and 406, IPC in

Women’s Cell, Kirti Nagar, Delhi registered as Complaint

No.372/2004 on 15.06.2004. The appellant was also surprised to

receive in July 2003 a notice of Divorce Petition filed by

respondent no.1 in a Delhi court on 19.5.2003. The appellant

approached various authorities and tried to get an investigation

into her allegations that FIR No.73/2002 was fraudulently

registered to benefit the accused nos.1 to 8 and the appellant

had no role in registering the same. Ultimately, even after a CID

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investigation in favour of appellant’s case, when no action was

taken against the culprits and no copy of the CID report was

made available to the appellant, she filed a Writ Petition

No.1488/2005 before the High Court of Chhattisgarh at Bilaspur

seeking the record of investigation report of CID and registration

of a criminal case against the accused as well as investigation by

CBI. In terms of directions of the High Court issued while

disposing of the writ petition on 24.06.2010, the appellant was

provided with copy of the CID investigation report and was also

permitted to inspect the entire connected record. Thereafter

appellant could find that the Station House Officer of Mahila

Thana, Raipur as well as accused no.9, Additional Director

General of Police, PHQ, Raipur also had played a role in

fraudulent registration of FIR No.73/2002 and hence she filed the

instant criminal complaint before the Court of Judicial Magistrate,

First Class, Raipur on 07.12.2010.

5.The learned Judicial Magistrate recorded the statement of

the appellant and also called for record of CID investigation in the

matter of FIR No.73/2002 for the purpose of perusal and

evaluation. On receipt of the record, the learned Judicial

Magistrate passed a speaking order on 02.05.2011 whereby he

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issued summons against accused nos.1 to 9 after finding a prima

facie case on the basis of complaint petition, statement of

complainant (appellant) as well as records of CID investigation on

which the complainant had placed reliance. Accused nos.1 to 8

preferred one set of criminal revision and accused no.9 preferred

another criminal revision before the Sessions Court at Raipur. By

two separate orders passed on same date, i.e., 30.11.2011, the

Sessions Court upheld the summoning order in respect of

accused nos.1 to 5 but set it aside in respect of accused nos.6 to

8 and accused no.9. Against these two orders the appellant

preferred criminal revision petitions whereas accused nos.1 to 5

also preferred a Criminal Miscellaneous Petition bearing

No.45/2012 before the High Court. The High Court, by common

judgment and order dated 07.09.2012 which is under appeal,

dismissed both the criminal revision petitions preferred by the

appellant against grant of relief to accused nos.6 to 9 and

allowed criminal miscellaneous petition of accused nos.1 to 5 by

setting aside the summoning order of the Magistrate and

directing the appellant to appear before the Court of Judicial

Magistrate for adducing further evidence, if any, to support her

allegation in the complaint petition. The High Court thus remitted

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back the matter with various observations requiring the appellant

to produce alleged documents which could prove forgery and also

to send the same to expert for examination of the document and

signature of the complainant/appellant.

6.Considering the stage at which the criminal complaint is

pending and the nature of proposed order, this Court would not

like to express any definite opinion on the merits of the

allegations made in the complaint petition or upon the defence

taken by the accused persons before the courts below or in this

Court lest it prejudices one or the other party in future.

7.Having considered the details of allegations made in the

complaint petition, the statement of the complainant on solemn

affirmation as well as materials on which the appellant placed

reliance which were called for by the learned Magistrate, the

learned Magistrate, in our considered opinion, committed no error

in summoning the accused persons. At the stage of cognizance

and summoning the Magistrate is required to apply his judicial

mind only with a view to take cognizance of the offence, or, in

other words, to find out whether prima facie case has been made

out for summoning the accused persons. At this stage, the

learned Magistrate is not required to consider the defence

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version or materials or arguments nor he is required to evaluate

the merits of the materials or evidence of the complainant,

because the Magistrate must not undertake the exercise to find

out at this stage whether the materials will lead to conviction or

not.

8.It is also well settled that cognizance is taken of the offence

and not the offender. Hence at the stage of framing of charge an

individual accused may seek discharge if he or she can show that

the materials are absolutely insufficient for framing of charge

against that particular accused. But such exercise is required

only at a later stage, as indicated above and not at the stage of

taking cognizance and summoning the accused on the basis of

prima facie case. Even at the stage of framing of charge, the

sufficiency of materials for the purpose of conviction is not the

requirement and a prayer for discharge can be allowed only if the

court finds that the materials are wholly insufficient for the

purpose of trial. It is also a settled proposition of law that even

when there are materials raising strong suspicion against an

accused, the court will be justified in rejecting a prayer for

discharge and in granting an opportunity to the prosecution to

bring on record the entire evidence in accordance with law so

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that case of both the sides may be considered appropriately on

conclusion of trial.

9.Learned senior advocate for the appellant Mr. Aman Lekhi

has relied upon a catena of judgments such as :-

(i)Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];

(ii) State of Orissa & Anr. vs. Saroj Kumar Sahoo [(2005)

13 SCC 540];

(iii)Riyasat Ali vs. State of U.P. [1992 Crl.L.J. 1217];

(iv) Nupur Talwar vs. Central Bureau of Investigation &

Anr. [(2012) 11 SCC 465];

(v) Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC

460];

(vi) Asmathunnisa vs. State of Andhra Pradesh & Anr.

[(2011) 11 SCC 259];

(vii)MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E.

Ltd. & Ors. [(2000) 3 SCC 269];

(viii)State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6

SCC 372];

(ix) B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];

(x) Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];

(xi) P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].

These need no discussion because settled propositions of law

reiterated therein have already been noticed earlier.

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10.In the present case, on going through the order of the

learned Magistrate, we are satisfied that the same suffers from

no illegality. The specific case of the appellant that FIR was

registered on an undated photocopy of a petition attributed to

the appellant but not bearing her original signature could not

have been rejected by the learned Magistrate at the present

stage especially in view of the report of investigation by the CID

which was also called for and there being no dispute that the FIR

No.73/2002 was registered only on the basis of a photocopy on

which the signature is not in original and hence in our considered

view the Hon’ble High Court grossly erred in exercise of its

jurisdiction by directing the appellant/complainant to lead further

evidence and produce the original documents to show forgery. If

the FIR is admittedly on the basis of only a photocopy of a

document allegedly brought into existence by the accused

persons, the High Court erred in directing the appellant to

produce the original and get the signatures compared.

11. In our considered view, the High Court fell into error of

evaluating the merits of the defence case and other submissions

advanced on behalf of the accused which were not appropriate

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for consideration at the stage of taking cognizance and issuing

summons.

12. Learned advocate for the accused persons, Mr. D.N.

Goburdhan has placed reliance upon judgment in the case of

Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate &

Ors. (1998) 5 SCC 749 to highlight that summoning of an

accused is a serious matter and, therefore, the order of the

Magistrate must reflect that he has applied his mind to the facts

of the case and the relevant law, as highlighted in paragraph 28

of the Report. In that case emphasis was laid upon power

available with the High Court either under Articles 226 and 227 of

the Constitution or under Section 482 of the Cr.P.C. to quash a

criminal proceeding even at initial stage to prevent the abuse of

process of law by the inferior courts. But this Court cautioned

that since the powers conferred on the High Court under

aforesaid provisions have no limits, hence more/due care and

caution is required while invoking these powers. In paragraph 29

it was emphasized that the accused can approach the High Court

“to have the proceeding quashed against him when the

complaint does not make out any case against him”. The facts in

the present case are otherwise and required the High Court to

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exercise more caution in view of clear allegations in the

complaint petition. The High Court erred in evaluating the merit

of evidence for interfering with a summoning order. Learned

counsel also placed reliance upon judgments in the case of

State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)

SCC 335 and also in the case of Thermax Ltd. & Ors. v. K.M.

Johny & Ors. (2011) 13 SCC 412 in support of the proposition

that power to quash criminal prosecution is justified where a

criminal proceeding is instituted with malafide or ulterior motives.

In the case of Bhajan Lal (supra) this Court did indicate in para

102, seven kinds of cases where court may exercise power to

quash criminal prosecution but in respect of the 7

th

category

relating to malafide, this Court used the expression – “manifestly

attended with malafide” and further explained in paragraphs 103

and 104 that the power of quashing should be exercised very

sparingly and with circumspection and that too in the rarest of

rare cases. Paragraphs 103 and 104 are reproduced hereunder :

“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

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the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the court to act according to

its whim or caprice.

104. It may be true, as repeatedly pointed out by Mr.

Parasaran, that in a given situation, false and

vexatious charges of corruption and venality may be

maliciously attributed against any person holding a

high office and enjoying a respectable status thereby

sullying his character, injuring his reputation and

exposing him to social ridicule with a view to spite him

on account of some personal rancour, predilections

and past prejudices of the complainant. In such a

piquant situation, the question is what would be the

remedy that would redress the grievance of the verily

affected party? The answer would be that the person

who dishonestly makes such false allegations is liable

to be proceeded against under the relevant provisions

of the Indian Penal Code – namely under Section 182

or 211 or 500 besides becoming liable to be sued for

damages.”

The facts in the case of Thermax Ltd. (supra) were quite

different and there was a clear situation showing that the

complainant was trying to circumvent period of limitation for

moving the Civil Court, by filing a delayed criminal case.

13. On behalf of accused persons reliance has also been

placed upon judgment in the case of M.N. Ojha & Ors. v. Alok

Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a

complaint filed against the appellants who were bank officials

was quashed because the Court found that it was a counter-blast

to action taken by them in their official capacity for realizing the

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loan amount due from the complainant. On facts of that case, it

was easy to hold that the complaint was clearly an abuse of

judicial process and it was also found that averments and

allegations in complaint did not disclose commission of any

offence by appellants. The Magistrate had failed to apply his

mind to the case of the appellants and the High Court had erred

in not even adverting to the basic facts. The factual situation in

the present case is quite otherwise. Reliance was also placed on

behalf of respondents upon judgment in the case of State of

Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that

case, the accused persons pleaded for discharge before the

Sessions Court which was not accepted but the High Court

quashed the proceedings on the ground that there was no

material on the record on the basis of which any tribunal could

reasonably come to the conclusion that the accused were in any

manner connected with the incident leading to the prosecution.

This Court agreed with the views of the High Court on the basis of

peculiar facts of that case showing lack of any data or material

which could create a reasonable likelihood of conviction for any

offence in connection with attempted murder of the complainant.

That judgment also is of no help to the respondents herein in the

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light of allegations made in the complaint, the statement of the

complainant on solemn affirmation and the CID Report of

investigation on which the complainant placed reliance and which

was perused by the learned Magistrate.

14. These appeals are therefore allowed, the judgment and

order under appeal passed by the High Court is set aside. We

also set aside the orders passed by the learned Sessions Court

dated 30.11.2011 whereby summoning order was set aside in

respect of accused nos.6 to 8 and accused no.9. In other words,

the order of summoning passed by learned Magistrate dated

02.05.2011 is restored. Before parting with the order we make it

clear that any observations in this order shall not prejudice the

case of either of the parties before the court below and the

criminal complaint case of the appellant must proceed on its own

merits strictly in accordance with law.

15. Although we have set aside the order granting relief to

accused nos.6 to 9 by the Sessions Court, in the interest of

justice, we direct that in the facts of the case accused nos.6 to 9

shall be granted benefit of bail by the learned Magistrate if they

appear within 10 weeks and apply for same. The Magistrate shall

of course be at liberty to set reasonable conditions for such grant.

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…………………………….J.

[ANIL R. DAVE ]

…………………………… .J.

[KURIAN JOSEPH]

…………………………....J.

[SHIVA KIRTI SINGH]

New Delhi.

February 11, 2015.

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