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CASE NO.:

Appeal (crl.) 72 of 2002

PETITIONER:

STATE OF KARNATAKA

Vs.

RESPONDENT:

M. DEVENDRAPPA & ANR.

DATE OF JUDGMENT: 16/01/2002

BENCH:

M.B. Shah, B.N. Agrawal & Arijit Pasayat

JUDGMENT:

J U D G E M E N T

ARIJIT PASAYAT, J.

Leave granted.

Order of learned Single Judge by which proceedings initiated

against the respondents in CC.No. 1613/1998 on the file of the CJM,

Tumkur, were set aside is subject matter of challenge, in this appeal.

Background facts in nutshell essentially are as follows: -

The Inspector of Police, Fraud Squad, COD submitted a

charge-sheet against the Respondents (hereinafter referred to as

"accused") in the aforesaid case alleging commission of offences

punishable under Sections 465, 468, 471 and 420 read with Section

120-B of Indian Penal Code 1860 (in short 'IPC'). The said charge-

sheet was submitted after investigation, on receipt of complaint

made by one Police Inspector attached to the Fraud Squad, COD,

Bangalore. Cognizance was taken by the CJM. Respondents -

accused nos. 1&2 filed application before the Karnataka High Court

under Section 482 of the Code of Criminal Procedure, 1973 (in short

the 'Code'). They inter alia contended that the allegations made

have not been borne out by the materials/evidence collected

during investigation and continuance of proceedings against them

would be against the ends of justice. Learned single Judge noted

that the substance of charge-sheet as stated in Form No. 7 was to

the effect that for the year 1992-1993 and 1993-1994, the Excise

Contractors Ranganatha Group were awarded the contract to act

as excise contractors for the Tumkur District. The said Ranganatha

Group sub-leased by way of General Power of Attorney (in short

'GPA') to accused no. 1 to act as Excise Contractor of Koratagere

of Tumkur District. As a part of the arrangement, the said accused

no. 1 M.Devendarappa was required to produce bank guarantee

for the whole of Tumkur District at the rate of 1/10th amounting to

Rs.39,06,000/- from Nationalized Bank for the year 1992-1993. Similar

was the position for the year 1993-1994 except that the original

contractors were Yallappa and Ramachandrappa and the Bank

guarantee required to be furnished was for an amount of

Rs.64,29,500/-. Allegations were to the effect that "Letter Heads" of

Karnataka Bank Ltd., were removed surreptitiously and with fake

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seals, fake bank guarantees were typed out on the "Stamp Papers"

purchased from "Koratagere Stamp Vendor" and were signed by

accused no. 2 posing to be the Manager of Karnataka Bank Ltd.,

Koratagere Branch. These bank guarantees were submitted as if

they were genuine in the office of Deputy Commissioner of Excise,

Tumkur. On 17.7.93, accused no. 1 took Excise Sub-Inspector to a

house at Asok Nagar, Tumkur where he introduced accused no. 2 to

be the Manager of the Bank and caused service of a notice which

was addressed to the Manager of the Bank by the Deputy

Commissioner of Excise. Under the above circumstances, it was

alleged that with fraudulent intention, fake bank guarantees,

confirmation letters, extension letters were submitted and there was

impersonation. Therefore, it was stated that offences were

punishable as noted above.

Learned Single Judge analysed the background facts and

came to hold that the involvement of excise officials cannot be

ruled out and when they have been indicated to be witnesses,

likelihood of prejudice cannot be ruled out. It was also noted that

there was no "definite evidence" to show that accused nos. 1&2

were directly involved. Finally, it was observed that there was no

material to hold that the accused persons had committed theft of

"Letter Heads" from Karnataka Bank Ltd., and/or they had

committed forgery for the purpose of cheating or have used

genuine forged documents or had cheated the government.

Finally, it was observed that there was no evidence to infer common

intention to commit such offences.

Aggrieved by the said Order directing quashing of the

proceedings, this appeal has been filed. In support of the appeal, it

is submitted by learned counsel for the State of Karnataka that the

very approach of learned Single Judge is unjustified, illegal and

erroneous. He was considering the desirability of continuing the

proceeding. He has dealt with the matter as if he was holding a trial.

The question whether there was any direct evidence or not is not

really relevant at the stage of taking cognizance/framing of

charges. Considering the limited scope of consideration in the

background of powers exercisable under Section 482 of the Code,

the order, it is submitted, is erroneous. Learned counsel for the

respondents/accused persons, however, submitted that when there

is no scope for conviction, the continuance of the proceedings

would have been an abuse of the process of Court. Further,

persons whose roles have been highlighted by learned Single Judge

to show involvement having not been made accused persons, and

having been only indicated to be witnesses, the trial, if any, would

ultimately be of no consequence. In substance, it was, therefore,

submitted that the order does not suffer from any infirmity to warrant

any interference.

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 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 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 High Courts. All Courts,

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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 "quande lex aliquid aliqui

concedit, concedere videtur in sine que 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 exdebite 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 abuse. It would be an abuse of

process of Court to allow any action which would result in injustice

and prevent promotion of justice. In exercise of the powers Court

would be justified to quash any proceeding if it finds

initiation/continuance of it amounts to abuse of 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.

In R.P. Kapur. vs. State of Punjab (AIR 1960 SC 866), this Court

summarized some categories of cases where inherent power can

and should be exercised to quash 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 allegation 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.

In dealing with the last case, 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 function of the trial Judge. Judicial process 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 private

complainant as 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

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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 and others vs. Ch. Bhajan Lal and others (AIR 1992 SC 604).

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 F.I.R do not disclose a

cognizable offence, justifying an investigation

by police officers under Section 156(1) of the

Code except under an order of 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 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

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.

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

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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. vs. H.S.

Chowdhary and Ors. etc. (AIR 1993 SC 892), Dr. Raghubir Saran vs.

State of Bihar & Anr. (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 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 that the ingredients of the offence or offences are

disclosed and there is no material to show that the complaint 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 vs. R. Prassnna Kumar and

Ors. (AIR 1990 SC 494), State of Bihar & Anr. vs. P.P. Sharma I.A.S. &

Anr. (1992 Suppl. (1) SCC 222), Rupan Deo Bajaj (Mrs.) & Anr. vs.

Kanwar Pal Singh Gill & Anr. (1995 [6] SCC 194), State of Kerala &

Ors. vs. O.C. Kuttan & Ors. (1999 [2] SCC 651), State of U.P. vs. O.P.

Sharma (1996 [7] SCC 705), Rashmi Kumar (Smt.) vs. Mahesh Kumar

Bhada (1997 [2] SCC 397), Satvinder Kaur vs. State (Govt. of NCT of

Delhi) and Anr. (1999 [8] SCC 728), Rajesh Bajaj vs. State NCT of

Delhi and Ors. (AIR 1999 SC 1216)].

The factual position highlighted above clearly shows

commission of offences, and considered in the background of the

legal principles enumerated above, the order of learned single

Judge cannot be maintained. The same is set aside. The appeal is

allowed. We, however, make it clear that whatever we have stated

above should not be considered to be expression of opinion

regarding the merits of the case, which it goes without saying, has

to be considered by the concerned Court at an appropriate stage.

.J.

(M. B. SHAH)

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....J.

(B. N. AGRAWAL)

...J.

(ARIJIT PASAYAT)

January 16, 2002