This appeal, filed in the Allahabad High Court under Section 482 of the Criminal Procedure Code, contests the Additional Chief Judicial Magistrate-IV's ruling that found the appellant guilty and dismissed ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.577 OF 2017
(ARISING OUT OF SLP(CRL.) No.287 OF 2017)
VINEET KUMAR & ORS. .... APPELLANTS
VERSUS
STATE OF U.P. & ANR. .... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1.This appeal has been filed against the judgment dated
16.12.2016 of the High Court of Judicature at Allahabad
dismissing the Application filed by the appellants under
Section 482 Cr.P.C. Appellants had filed Application under
Section 482 Cr.P.C. for quashing the judgment and order dated
03.08.2016 passed by Additional Chief Judicial MagistrateIV,
Moradabad summoning the appellants for an offence under
Section 452, 376(d) and 323 IPC, as well as order dated
22.10.2016 passed by the District Sessions Judge, Moradabad
dismissing the Criminal Revision filed by the appellants. The
appellants shall hereinafter be referred to as accused and
respondent No.2 as complainant. The facts of the case as
emerged from the records need to be noted for deciding the
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issues raised in this appeal.
2.The accused have made several financial transactions with
complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and
her son, Ankur in the months of May, 2015. Accused No.3 gave
Rs.9 lakh to husband and son of the complainant for business
purposes. An amount of Rs.7 lakh 50 thousand was given in cash
to complainant and her husband by accused No.1. Further,
husband of complainant received Rs.3 lakh 60 thousand in cash
and Rs.2 lakh 40 thousand by cheque dated 29.05.2015 from
accused No.1.
3.An agreement dated 29.05.2015 was signed by the husband
of the complainant and accused No.1 acknowledging the payment
of Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by
cheque. A cheque of Rs.6 lakh was handed over by the husband
of the complainant to accused No.1 to ensure the repayment.
Another agreement between the complainant and accused No.1 was
entered into on 01.06.2015 wherein it was acknowledged that
complainant and her husband had taken Rs.7 lakh 50 thousand in
cash from accused No.1. Earlier, husband of complainant took
Rs.6 lakh from accused No.1. Parties entered into an agreement
agreeing with certain conditions. Third agreement was entered
into between the son of complainant and accused No.1 on
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31.08.2015 wherein son of complainant acknowledged that his
parents have taken an amount of Rs.14 lakh 50 thousand.
Complainant and her husband gave cheques of Rs.6 lakh and Rs.8
lakh 50 thousand to accused No.1 drawn on Prathama Bank, Kanth
Branch, District Moradabad for recovery of the amount given by
the accused. Agreement noticed that the amount was borrowed
with promise to return the amount. The agreements were written
on NonJudicial Stamp Papers which were not registered but
contained signatures of the parties mentioned therein.
4.Accused No.3 filed a complaint under Section 138 of
Negotiable Instruments Act being Complaint No.1587/2015
against husband and son of the complainant with the allegation
that amount of Rs.9 lakh was paid to the opposite parties who
had issued a cheque of Rs.9 lakh with the assurance that the
amount will be repaid by 22.08.2016. It was stated by accused
No.3 in the complaint that after lapse of time when the amount
was not paid, the cheque was deposited which was returned back
by the Bank with remark “No Sufficient Balance”. When the
opposite parties were contacted in this regard, the opposite
parties told not come to them. After giving a notice on
05.09.2016, complaint was filed on 21.09.2015. Accused No.1
had also filed an Application on 29.09.2015 under Section
156(3) Cr.P.C. against the complainant, her husband and son.
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Cheque given by son of the complainant of Rs.6 lakh to accused
No.2 was also dishonoured. Complaint filed by accused No.1
under Section 138 of Negotiable Instruments Act was registered
as Complaint No.3280/2015. Complaints against complainant, her
husband and son were filed in the month of September, 2015
alleging dishonoured of cheque and complaint of nonpayment of
amount given to the complainant and her husband and son.
5.On 30.10.2015 complainant filed an Application under
Section 156(3) Cr.P.C. against all the three accused alleging
commission of offence under Section 376(d),323 and 452 IPC. In
the application allegation was made against the accused that
on 22.10.2015 at about 7.30 p.m. all the three accused came to
the house of the complainant. At that time she was alone in
the house. It was alleged that all the three accused started
misbehaving with her. They beat her with stick, fist and
kick. Thereafter, accused, Vineet and Nitendra raped her one
by one while Sonu stood outside the room. When Sonu told them
about arrival of complaint's husband, all the three accused
fled away. It was further alleged that she went to the Police
Station on the same day but the Police did not register FIR.
An order dated 03.11.2015 was passed by the Additional Chief
Judicial MagistrateIV, Moradabad for registration and
investigation to the concerned Police Station. On 06.11.2015,
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the First Information Report was registered being No.251/2015
at Police Station Kanth, District Moradabad under Section
376(d), 323, 452 IPC against the accused. After registration
of the case, crime was investigated by Investigating
Officer(IO). The IO recorded the statements of complainant,
her husband and motherinlaw. Complainant in her statement
repeated her allegation. It was further stated that she went
along with her husband to Police Station but report was not
lodged. On next day, she went to Government Hospital,
Moradabad with her husband for medical examination. Doctor
conducted medical examination to external injuries but refused
to her internal examination. Husband and fatherinlaw of the
complainant also recorded statements. They stated that before
they arrived at the house, accused had already fled away. IO
asked the complainant “as to whether now she is ready to get
done medical examination”, husband of the complainant answered
“no, now there is no benefit out of medical examination. Now,
I don't want to get my wife's medical examination done as much
time has been elapsed“. When the husband was also asked some
questions to get her wife medically examined following answers
were given by the husband:
"Question – Now get the medical examination of
hour wife done so that D.N.A. etc. proceeding
could be done?
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Ans. This occurrence is of 22.10.2015 in
the evening at 19.30 hrs. and since then till
now I have also have sexual intercourse
with my wife several times. Thus, now there is
no benefit out of medical examination and
instead I myself will be positive.”
6.Before the IO, complainant, her husband, fatherinlaw
and motherinlaw all stated that at the time of occurrence
there was no electricity.
7.The accused also recorded statement of various persons in
support of the claim of the accused that at the time alleged
by the complainant they were not present and till 9 p.m. they
were with their friends in Dushehara Mela. IO recorded the
statement of certain persons who stated that accused were with
them till 9 p.m. on 22.10.2015.
8.Although, the complainant and her husband refused medical
examination when they are so asked by IO on 07.11.2015, but
she got her medical examination done on 20.11.2015. Pathology
Report (filed at page 50 of paper book) stated as : “No
spermatozoa alive or dead are seeing the received smears
within sealed envelope”.
9.On 24.11.2015 complainant got her statement recorded
under Section 164 Cr.P.C. In the statement the age of
complainant was recorded as 47 years. In the statement the
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complainant repeated her allegations.
10.After statement under Section 164 Cr.P.C. was recorded,
IO carried out detailed investigation by recording statements
of brother of complainant's husband and his wife. Along with
the complainant, the brother of her husband as well as his
wife were also staying in the same house at the relevant time.
The IO recorded the statement of Nikesh Kumar, brother of
complainant's husband. It is useful to extract below the
statement of brother of complainant's husband as recorded by
the IO:
"Statement of Shri Nikesh Kumar son of
Subhash Chandra Vishnoi resident of Mohalla
Vishanpura, Kasba Kanth is present. Upon
enquiry has stated that on 22.10.15 there
was Dushehara Mela. I alongwith my children
had gone to see Mela(Fair) and had returned
back to my house at 5.005.30 p.m. Rekha
Rani is my real Bhabhi (sisterinlaw).
There has been monetary transaction between
Akhilesh and Vineet. Time to time my brother
used to borrow a sum of Rs.Two lakh, four
lakh from Vineet and used to invest the same
in his business and then used to return. Now
there has been interse dispute among them
owing to monetary transaction. On this
dispute my sisterinlaw Rekha has
instituted case against Vineet and others.
It is not good to mention such shameful
facts and my sisterinlaw has not done
good. There are young children in the family
and there would be wrong effect of these
facts. I have spade my brother Akhilesh and
father have also scolded him. Now he is
saying that mistake has been committed and
whatever has occurred has occurred. I and my
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wife have gone to Court. Moradabad and have
submitted our affidavit in the Court. We
have mentioned the correct fact therein. We
will tell the same fact in the Court that no
such occurrence has taken place in our
house. My Bhabhi Rekha has lodged a case in
the Court out of anger which is a false
case.”
11. The wife of Nikesh Kumar, Smt. Bina Vishnoi also made
the following statement before the IO which is the part of the
Case Diary:
"Statement of Smt.Bina Vishnoi w/o
Nikesh Kumar resident of Mohalla Vishanpura
Kasba and P.S. Kanth is present. Upon
enquiry, she has stated that on 22.10.15
there was Dushehara festival and we after
seeing Dushehara Mela had returned back and
came at our house at about 5.00 p.m. I had
opened my shop. I have a grocery shop. Most
of transaction takes place in the evening.
Rekha is my elder real Jethani. My Jeth
Akhilesh has monetary transaction with
Vineet and others. He used to borrow money
Rs. Two lakh, four lakh from Vineet to
invest the same in his business and the
returns the same. Now what has happened I do
not know and interse dispute has cropped up
among them and my Jethani has taken such a
wrong step which does not happens in our
house. Our family and the family of Vineet
are the respected family of Mohalla and we
have business and trade of lakh of rupees.
We have spade an scolded them. Our children
are also growing to be young. When you
people visit it has effect on them. Now they
are realising the mistake. No occurrence of
rape etc. has happened in our house and in
this regard the complete Mohalla will tender
evidence. I have even appeared in the Court
and submitted an affidavit and will tell the
true fact in the Court.
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Question On 22.10.15 in the evening at 7.30
p.m. you were present at your room/shop
the whether you have heard any cry or
had seen Vineet coming or going?
Ans. On 22.10.15 since 5.00 p.m. we were
at our house and no one had come in our
house and Rekha has informed us. No such
occurrence of rape could take place in our
house. You could enquire from our all
neighbours.”
12.The affidavits were also given by Nikesh Kumar and Smt.
Bina Vishnoi who were residing in the same house. Smt. Bina
Vishnoi is also running a shop of General Store in one portion
of the house. She stated that on the date of occurrence Rekha
Rani was in her parental house to celebrate Dushehara and was
not present at her house.
13.IO after completion of investigation and after taking
into consideration the materials collected during the
investigation came to the conclusion that no such incident
took place on 22.10.2015 as alleged by the complainant. Final
Report No.40/15 was submitted by the IO on 29.11.2015 which is
to the following effect:
“The First Information Report in the
above mentioned incident was registered on
6.11.2015 and the investigation was taken up
by me. After recording the statement of the
witnesses and inspection of the place of
occurrence the allegation was found to be
false by me. Therefore this final report
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No.40/15 is being submitted for your
consideration.”
14.After submission of Final Report on 29.11.2015 Police has
also submitted a further report before the Additional Chief
Judicial Magistrate for initiating proceeding under Section
182 Cr.P.C. against the complainant. Respondent No.2 moved
Protest Petition dated 07.01.2016. It was allowed by the
Addl.CJM on 28.05.2016. An Application under Section 482
Cr.P.C. was filed before the High Court. It was allowed and
order dated 28.05.2016 was set aside directing the Magistrate
to pass fresh order. The Magistrate passed again order dated
03.08.2016 summoned the accused. Revision was filed before the
Sessions Judge against the order dated 03.08.2016 which was
dismissed by order dated 22.10.2016.
15.The accused filed Application under Section 482 Cr.P.C.
to quash the order dated 03.08.2016 and the order passed by
the Sessions Judge. It was prayed by the accused that orders
were passed without appreciating the evidence and material on
records, they deserve to be set aside and the Protest Petition
be rejected. The High Court refused the prayer for quashing
the orders by making the following observations:
"From the perusal of the material on
record and looking into the facts of the
case at this stage it cannot be said that no
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offence is made out against the applicants.
All the submission made at the Bar relates
to the dispute question of fact, which
cannot be adjudicated upon by this Court in
exercise of power conferred under Section
482 Cr.P.C. at this stage only prima facie
case is to be seen in the light of the law
laid down by Supreme Court in case of R.P.
Kapur Vs. State of Punjab, AIR 1960 SC 866,
State of Haryana Vs. Bhajan Lal, 1992 SCC
(Cr.)426, State of Bihar Vs. R.P. Sharma,
1992 SCC (Cr.) 192 and lastly Zandu
Pharmaceuticals Works Ltd. Vs. Mohd. Saraful
Haq and another (par 10) 205 SCC (Cr.) 283.
The disputed defence of the accused cannot
be considered at this stage.”
16.Aggrieved by the above judgment of the High Court this
appeal has been filed.
17.Learned counsel for the appellants contended that
criminal proceedings initiated by the complainant in the facts
of the present case was malafide and falsely initiated to save
complainant, her husband and son from making repayment of the
amount taken by them with regard to which complaint under
Section 138 of Negotiable Instruments Act by the accused were
already filed and pending. After registration of case on
Application filed by the complainant under Section 156(3)
Cr.P.C., the IO conducted thorough investigation by recording
the statements of complainant, her husband as well as
husband's brother and brother's wife. Various affidavits were
also received by the IO and after conducting investigation
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there was sufficient materials to come to the conclusion that
a story of alleged rape was wholly false and no such incident
had taken place as alleged by the complainant. He has
submitted a Final Report in the case which ought to have been
accepted by the learned Magistrate. It is contended that
Protest Petition has been allowed without adverting to the
material collected by the IO. The fact that the Application
under Section 156(3) Cr.P.C. itself was filed after 8 days of
alleged rape, there is no medical report to prove the alleged
rape, these were sufficient to discard the allegations made by
the complainant. Summoning of the accused of such serious
offence cannot be a mechanical exercise in the facts and
circumstances of the case and material collected during
investigation which were part of the Final Report were
required to be adverted to by the Court while rejecting the
Final Report. Learned counsel submits that prosecution in the
present case is a clear abuse of the process of the Court and
deserves to be set aside in exercise of jurisdiction under
Section 482 Cr.P.C. by the High Court.
18.Learned counsel appearing for the respondent No.2
refuting the submission made by the learned counsel for the
appellants contended that no error has been committed by the
Courts below in summoning the accused, there was statement
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under Section 164 Cr.P.C. of the complainant where she
reiterated her case of rape by accused No.1 and 3. It is
submitted that at this stage the Court was not required to
marshal the evidence and examine the charge on merit and the
High Court has rightly refused to exercise jurisdiction under
Section 482 Cr.P.C. to quash the criminal proceedings.
19.We have considered the submissions made by the parties
and perused the records.
20. Before we enter into the facts of the present case it is
necessary to consider the ambit and scope of jurisdiction
under Section 482 Cr.P.C. vested in the High Court. Section
482 Cr.P.C. saves the inherent power of the High Court to make
such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice.
21.This Court time and again has examined scope of
jurisdiction of High Court under Section 482 Cr.P.C. and laid
down several principles which govern the exercise of
jurisdiction of High Court under Section 482 Cr.P.C. A
threeJudge Bench of this Court in State of Karnataka vs. L.
Muniswamy and others, 1977 (2) SCC 699,held that the High
Court is entitled to quash a proceeding if it comes to the
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conclusion that allowing the proceeding to continue would be
an abuse of the process of the Court or that the ends of
justice require that the proceeding ought to be quashed. In
paragraph 7 of the judgment following has been stated:
“7....In the exercise of this wholesome
power, the High Court is entitled to quash a
proceeding if it comes to the conclusion
that allowing the proceeding to continue
would be an abuse of the process of the
Court or that the ends of justice require
that the proceeding ought to be quashed. The
saving of the High Court’s inherent powers,
both in civil and criminal matters, is
designed to achieve a salutary public
purpose which is that a court proceeding
ought not to be permitted to degenerate into
a weapon of harassment or persecution. In a
criminal case, the veiled object behind a
lame prosecution, the very nature of the
material on which the structure of the
prosecution rests and the like would justify
the High Court in quashing the proceeding in
the interest of justice. The ends of justice
are higher than the ends of mere law though
justice has got to be administered according
to laws made by the legislature. The
compelling necessity for making these
observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent
powers of the High Court to do justice,
between the State and its subjects, it would
be impossible to appreciate the width and
contours of that salient jurisdiction.”
22.The judgment of this Court in State of Haryana and others
vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has
elaborately considered the scope and ambit of Section 482
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Cr.P.C. Although in the above case this Court was considering
the power of the High Court to quash the entire criminal
proceeding including the FIR, the case arose out of an FIR
registered under Section 161, 165 IPC and Section 5(2) of the
Prevention of Corruption Act, 1947. This Court elaborately
considered the scope of Section 482 CR.P.C./ Article 226 in
the context of quashing the proceedings in criminal
investigation. After noticing various earlier pronouncements
of this Court, this Court enumerated certain Categories of
cases by way of illustration where power under 482 Cr.P.C. can
be exercised to prevent abuse of the process of the Court or
secure ends of justice. Paragraph 102 which enumerates 7
categories of cases where power can be exercised under Section
482 Cr.P.C. are extracted as follows:
“102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV and
of the principles of law enunciated by this
Court in a series of decisions relating to
the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
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to give an exhaustive list of myriad kinds
of cases wherein such power should be
exercised.
(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 noncognizable 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
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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.”
23.A threeJudge Bench in State of Karnataka vs. M.
Devenderappa and another, 2002 (3) SCC 89, had occasion to
consider the ambit of Section 482 Cr.P.C. By analysing the
scope of Section 482 Cr.P.C., this Court laid down that
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
further held that Court would be justified to quash any
proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of Court or quashing of these
proceedings would otherwise serve the ends of justice.
Following was laid down in paragraph 6:
“6......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 alicui
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concedit, concedere videtur et id sine quo
res ipsae 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 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 exercise of the
powers court would be justified to quash any
proceeding if it finds that
initiation/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.”
Further in paragraph 8 following was stated:
“8.....Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect and
judicious in exercising discretion and
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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 shortcircuit 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.”
24.In Sunder Babu and others vs. State of Tamil Nadu, 2009
(14) SCC 244, this Court was considering the challenge to the
order of the Madras High Court where Application was under
Section 482 Cr.P.C. to quash criminal proceedings under
Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961.
It was contended before this Court that the complaint filed
was nothing but an abuse of the process of law and allegations
were unfounded. The prosecuting agency contested the petition
filed under Section 482 Cr.P.C. taking the stand that a bare
perusal of the complaint discloses commission of alleged
offences and, therefore, it is not a case which needed to be
allowed. The High Court accepted the case of the prosecution
and dismissed the application. This Court referred to the
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judgment in Bhajan Lal case (supra) and held that the case
fell within Category 7. Apex Court relying on Category 7 has
held that Application under Section 482 deserved to be allowed
and it quashed the proceedings.
25.In another case in Priya Vrat Singh and others vs. Shyam
Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as
laid down in State of Haryana vs. Bhajan Lal(supra). In the
above case the Allahabad High Court had dismissed an
Application filed under Section 482 Cr.P.C. to quash the
proceedings under Section 494, 120B and 109 IPC and Section 3
and 4 of Dowry Prohibition Act. After noticing the background
facts and parameters for exercise of power under Section 482
Cr.P.C. following was stated in paragraphs 8 to 12:
“8. Further, it is pointed out that the
allegation of alleged demand for dowry was
made for the first time in December 1994. In
the complaint filed, the allegation is that
the dowry torture was made sometime in 1992.
It has not been explained as to why for more
than two years no action was taken.
9. Further, it appears that in the
complaint petition apart from the husband,
the mother of the husband, the subsequently
married wife, husband’s mother’s sister,
husband’s brotherinlaw and Sunita’s father
were impleaded as party. No role has been
specifically ascribed to anybody except the
husband and that too of a dowry demand in
February 1993 when the complaint was filed
on 6121994 i.e. nearly after 22 months. It
is to be noted that in spite of service of
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notice, none has appeared on behalf of
Respondent 1.
10. The parameters for exercise of power
under Section 482 have been laid down by
this Court in several cases.
11. “19. The section does not confer
any new power 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 recognises 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 alicui concedit, concedere
videtur 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
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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 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 exercise
of the powers court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise
serve the ends of justice.
20. 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. The 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 hardandfast
rule can be laid down in regard to cases
in which the High Court will exercise its
extraordinary jurisdiction of quashing
Page 23 23
the proceeding at any stage.”
[See Janata Dal v. H.S. Chowdhary, Raghubir
Saran (Dr.) v. State of Bihar and Minu
Kumari v. State of Bihar, SCC p. 366, paras
1920.]
12. The present case appears to be one where
Category 7 of the illustrations given in
State of Haryana v. Bhajan Lal is clearly
applicable.
26.From the material on records, following facts are
disclosed from the sequence of events which preceded the
registration of FIR on 06.11.2015. The complainant, her
husband and son had taken different amounts totalling Rs.22
lakh 50 thousand in the month of May, 2015 for business/shop
purposes from the accused. Three agreements were written on
NonJudicial Stamp Papers on 29.05.2015, 01.06.2015 and
31.08.2015 wherein complainant, her husband and son have
acknowledged receipt of the money in cash as well as by
cheque. Cheques of Rs. 6 lakh, Rs.14 lakh 50 thousand were
given to accused for ensuring the repayment. Cheques were
drawn on the Prathama Bank, Kanth Branch, District Moradabad.
Cheques were deposited in the Bank which were returned with
endorsements “No Sufficient Balance”. After cheques having
been dishonoured, complaints under Section 138 of Negotiable
Instruments Act were filed by the accused against the husband
and son of the complainant which were registered in the month
Page 24 24
of September/October and were pending before alleged incident
dated 22.10.2015.
27.The complainant alleges rape by the accused on 22.10.2015
at 7.30 p.m. at her house and alleges that on the same day she
went to the Police Station but FIR was not registered. She
states that after sending an application on 26.10.2015 to the
SSP, she filed an Application under Section 156(3) Cr.P.C.
before the Magistrate. There is no medical report obtained by
the complainant except medical report dated 20.11.2015. IO on
07.11.2015 when asked the complainant to get medical
examination done, complainant and her husband refused. The
incident having taken place on 22.10.2015 at 7.30 p.m. nothing
was done by the complainant and her husband till 26.10.2015
when she alleges the Application was sent to SSP.
28.During investigation, IO has recorded the statements of
brother of complainant's husband as well as Smt. Bina Vishnoi,
the wife of husband's brother who were residing in the same
house and have categorically denied that any incident happened
in their house. Both, in their statements and affidavits have
condemned the complainant for lodging a false report.
29.IO collected affidavits of several persons including
affidavits of Nikesh Kumar and Smt. Bina Vishnoi and on
Page 25 25
collecting the entire material and visiting the spot IO had
come to the conclusion that no such incident took place and
submitted a Final Report dated 29.11.2015. On 29.11.2015
itself, the IO has submitted another report for prosecution of
complainant under Section 182 Cr.P.C. for giving false
information to the Police.
30.After submission of Final Report and submissions of
Report under Section 182 Cr.P.C. dated 29.11.2015 complainant
filed a Protest Petition on 07.01.2016.
31.It is true that in the statement under Section 164
Cr.P.C, the complainant repeated her allegation. Complainant
has also recorded her age in the statement as 47 years.
32.The Magistrate in allowing the Protest Petition only
considered the submission made by the State while summoning
the accused in paragraph 6 which is to the following effect:
"6.In compliance with the order passed by
the Hon'ble High Court and from the perusal
of evidence and entire case diary this Court
comes to the conclusion that the complainant
is required to be registered as police
complainant and there are sufficient grounds
to summon the accused Vinit Kumar, Sonu and
Nitendra for their trial under Section 376D,
323 and 352 of Indian Penal Code.”
33.Learned Sessions Judge has also affirmed order taking
Page 26 26
note of statement under Section 164 Cr.P.C.
34.There was sufficient material on record to indicate that
there were financial transactions between the accused and
complainant, her husband and son. On dishonour of cheques
issued by the complaint's husband and son proceedings under
Section 138 of Negotiable Instruments Act were already
initiated by the accused. All family members of the
complainant were living in the same house. Brother of husband
and his wife, in their statements before the IO have admitted
monetary transactions of his brother with the accused. The
statements before the IO of both the Nikesh Kumar and Smt.
Bina Vishnoi have already been extracted above, which were
part of the Case Diary and was material which ought to have
been looked into which was submitted by the IO in the Final
Report.
35.The fact is that no medical examination was got done on
the date of incident or even on the next day or on 07.11.2015,
when IO asked the complainant and her husband to get done the
medical examination. Subsequently it was done on 20.11.2015,
which was wholly irrelevant. Apart from bald assertions by the
complainant that all accused have raped, there was nothing
which could have led the Courts to form an opinion that
present case is fit a case of prosecution which ought to be
Page 27 27
launched. We are conscious that statement given by the
prosecutrix/complainant under Section 164 Cr.P.C. is not to be
lightly brushed away but the statement was required to be
considered along with antecedents, facts and circumstances as
noted above. Reference to the judgment of this Court in
Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is
relevant for the present case. In the above case the
complainant lady aged 21 years lodged an FIR under Section 328
and 354 IPC with regard to the incident dated 15.02.2007. She
sent a telephonic information on 16.02.2007 and on her
statement FIR under Sections 328 and 354 IPC was registered
against the appellant. After a lapse of five days on
21.02.2007 she gave a supplementary statement alleging rape by
the appellant on 23.12.2006, 25.12.2006 and 01.01.2007.
Statement under Section 164 Cr.P.C. of the prosecutrix was
recorded. Police filed chargesheet under Section 328, 324 and
376 IPC. Chargesheet although mentioned that no proof in
support of crime under Section 328/354 could be found.
However, on the ground of statement made under Section 164
Cr.P.C. chargesheet was submitted. Paragraph 10 of the
judgment which notes the chargesheet is as follows:
“ 10. On 28.6.2007, the police filed a
chargesheet under Sections 328,354 and 376
Page 28 28
of the Indian Penal Code. In the
chargesheet, it was clearly mentioned, that
the police investigation, from different
angles, had not yielded any positive result.
However, the chargesheet was based on the
statement made by the
complainant/prosecuterix before the
Metropolitan Magistrate, New Delhi under
Section 164 of the Code of Criminal
Procedure, which was found to be sufficient
for the charges alleged against the
appellantaccused. A relevant extract of the
chargesheet depicting the aforesaid factual
position, is being reproduced below:
“I the Inspector, tried my best from
all angles to recover the intoxicating
substance/Pepsi/Pepsi glass and
undergarments worn at the time of the
rape. But nothing could be recovered
and for this reason, the blood sample
of accused could not be sent to FSL. As
from the investigation so far
conducted, no proof could be found in
support of the crime under Section
328/354 IPC and even the position of
accused Prashant Bharti is not
available at Lodhi Colony at the date
and time as his mobile phone ill.
However, prosecuterix Priya Porwal made
statement on 21.2.2007 and on 27.2.2007
under Section 164 Cr.P.C. which is
sufficient in support of his challan
for the offence under Section 376 IPC.”
(emphasis supplied)”
36.Writ petition was filed by the accused for quashing the
FIR which was dismissed by the High Court on 27.08.2007.
Thereafter, charges were framed on 01.12.2008. Dissatisfied
with the framing of charges Criminal Revision Petition was
Page 29 29
filed which was dismissed by Delhi High Cort on 16.01.2009.
The order of Additional Sessions Judge has been extracted by
this Court in paragraph 14 which is quoted below:
“14. Dissatisfied with the action of the
trial Court in framing charges against him,
the appellantaccused filed Criminal
Revision Petition no. 08 of 2009, whereby he
assailed the order dated 1.12.2008 passed by
the Additional Sessions Judge, New Delhi.
The Delhi High Court dismissed the revision
petition on 16.1.2009, by inter alia
observing as under:
“12. Truthfulness or falsity of the
allegations, essentially pertains to
the realm of evidence and the same
cannot be prejudged at this initial
stage. I do not find any illegality or
infirmity in the impugned order.
Consequently, this Revision Petition is
dismissed in limine while making it
clear that anything herein shall not be
construed as an opinion on merits at
trial.””
37.The appeal was filed against the aforesaid judgment of
the High Court by the accused contending that there was
sufficient material collected in the investigation which
proved that allegations were unfounded and the prosecution of
the appellant was an abuse of process of the Court. In
paragraph 23 this Court noted several circumstances on the
basis of which this Court held that judicial conscience of the
High Court ought to have persuaded it to quash the criminal
proceedings. This Court further noticed that Investigating
Page 30 30
Officer has acknowledged, that he could not find any proof to
substantiate the charges. The chargesheet had been filed only
on the basis of the statement of the complainant/prosecutrix
under Section 164 Cr.P.C. In paragraphs 24 and 25 of the
judgment following was stated:
“24. Most importantly, as against the
aforesaid allegations, no pleadings
whatsoever have been filed by the
complainant. Even during the course of
hearing, the material relied upon by the
accused was not refuted. As a matter of
fact, the complainant/prosecutrix had
herself approached the High Court, with the
prayer that the first information lodged by
her, be quashed. It would therefore be
legitimate to conclude, in the facts and
circumstances of this case, that the
material relied upon by the accused has not
been refuted by the complainant/prosecutrix.
Even in the charge sheet dated 28.6.2007,
(extracted above) the investigating officer
has acknowledged, that he could not find any
proof to substantiate the charges. The
chargesheet had been filed only on the
basis of the statement of the
complainant/prosecutrix under Section 164 of
the Cr.P.C.
25. Based on the holistic consideration of
the facts and circumstances summarized in
the foregoing two paragraphs; we are
satisfied, that all the steps delineated by
this Court in Rajiv Thapar’s case (supra)
stand satisfied. All the steps can only be
answered in the affirmative. We therefore
have no hesitation whatsoever in concluding,
that judicial conscience of the High Court
ought to have persuaded it, on the basis of
the material available before it, while
passing the impugned order, to quash the
Page 31 31
criminal proceedings initiated against the
accusedappellant, in exercise of the
inherent powers vested with it under Section
482 of the Cr.P.C. Accordingly, based on the
conclusions drawn hereinabove, we are
satisfied, that the first information report
registered under Sections 328, 354and 376 of
the Indian Penal Code against the
appellantaccused, and the consequential
chargesheet dated 28.6.2007, as also the
framing of charges by the Additional
Sessions Judge, New Delhi on 1.12.2008,
deserves to be quashed. The same are
accordingly quashed.”
38.Thus, above was the case where despite statement under
Section 164 Cr.P.C. by prosecutrix the Court referring to
material collected during investigation had held that the case
was fit where the High Court ought to have quashed the
criminal proceedings.
39.Inherent power given to the High Court under Section 482
Cr.P.C. is with the purpose and object of advancement of
justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court has to
thwart the attempt at the very threshold. The Court cannot
permit a prosecution to go on if the case falls in one of the
Categories as illustratively enumerated by this Court in
State of Haryana vs. Bhajan Lal. Judicial process is a solemn
proceeding which cannot be allowed to be converted into an
Page 32 32
instrument of operation or harassment. When there are material
to indicate that a criminal proceeding is manifestly attended
with mala fide and proceeding is maliciously instituted with
an ulterior motive, the High Court will not hesitate in
exercise of its jurisdiction under Section 482 Cr.P.C. to
quash the proceeding under Category 7 as enumerated in State
of Haryana vs. Bhajan Lal, which is to the following effect:
“(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.”
Above Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has noted the judgment
of the State of Haryana vs. Bhajan Lal, but did not advert to
the relevant facts of the present case, materials on which
Final Report was submitted by the IO. We, thus, are fully
satisfied that the present is a fit case where High Court
ought to have exercised its jurisdiction under Section 482 Cr.
P.C. and quashed the criminal proceedings.
40.In the result, appeal is allowed, the judgment of the
High Court dated 16.12.2016 as well as the order of Additional
Chief Judicial Magistrate dated 03.08.2016 and the order of
Page 33 33
the Sessions Judge dated 22.10.2016 including the entire
criminal proceedings are quashed.
.....................J.
( A. K. SIKRI )
.....................J.
( ASHOK BHUSHAN )
New Delhi,
March 31,2017.
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