REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE/ORIGINAL JURISDICTION
CRIMINAL APPEAL NO. 1755 OF 2008
(Arising out of S.L.P. (Crl.) No. 861 of 2007)
M/s. Eicher Tractor Ltd. & Ors. ...Appellants
Versus
Harihar Singh & Anr. ...Respondents
With
T.P. (Crl.) No. 199 OF 2008
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order of a learned Single Judge of
Allahabad High Court dismissing the petition under Section 482 of the
Code of Criminal Procedure, 1973 (in short the `Code’). By the said
1
petition appellants had prayed for quashing the proceedings initiated on the
basis of complaint filed by respondent No.1 and the order of learned Civil
Judge, Junior Division/Judicial Magistrate, R. S. Ghat, Barabanki, dated 8th
February, 2005 taking cognizance of offences punishable under Sections
420, 468 and 471 of the Indian Penal Code, 1860 (in short the `IPC‘) and
issuance of summons to the appellants. The learned magistrate recorded
statements of the complainant under Section 200 of Code as well as of the
witness under Section 202 of the Code and thereafter issued summons to the
appellants to start proceedings. The appellants took the stand that the
proceedings were nothing but an abuse of the process of Court. It was
pointed out that the summons issued were never served and bailable warrant
of arrest and subsequently non-bailable warrant has been issued and even
proceedings under Section 82 of the Code have been initiated. The High
Court accepted that without service of summons the issuance of bailable as
well as non-bailable warrant was uncalled for. It was also directed that the
proceedings initiated under Section 82 of the Code was to be stayed and on
the appellants appearing before the concerned court the proceedings shall
continue. The application was accordingly disposed of.
2
3. Learned counsel for the appellant submitted that the background facts
clearly show that the proceedings were initiated with a view to harass the
appellants and as a counterblast to the proceedings initiated by the
appellants. The order is supported by learned counsel for the respondent
No.1.
4. In order to appreciate the stand taken by the appellant it is necessary
to take note of the factual position, the same is as follows:
On 1.4.1994 the Respondent no.1 approached the Petitioner no.1 for
dealership, and a Letter of Intent appointment of dealer was issued to the
Respondent.
On March 2000 the tenure of dealership of the Respondent no.1 was
ended as the same was not doing business, incurring heavy debts to the
appellant no.1.
On January, 2001 the Respondent no.1 issued cheque bearing no
628701 dated 30.12.2000 for Rs.50,00,000/-(Fifty Lacs) discharging his
liability towards the debt incurred against the appellant No.1.
3
On January, 2001 the Respondent presented the cheque bearing No.
628701 to his bank for withdrawal.
On 23.01.2001 the bank returned the cheque with an endorsement on
the return memo i.e. refer to the drawer.
On 05.02.2001 the appellant issued a Legal Notice under Section 138
Negotiable Instrument Act, 1882 (in short the `NI Act‘)
On January 2001, the appellant filed a complaint u/s 138/442 read
with Section 141 of the NI Act before the Court of judicial Magistrate-I,
Faridabad.
On 12.04.2001, the Trial Court after considering the Complaint and
the pre-summoning evidence took cognizance and issued summons against
the Respondent. The Respondent no.1 appeared and subsequently was
released on bail.
4
On 04.10.2002 the Respondent No.1 filed a private complaint under
section 200 Cr.P.C. before the Civil Judge, (J.D.)/District Barabanki
alleging that the officials of Petitioner no.1 herein had stolen the cheques
bearing No. 0628701 ‘to 0628704, It was further mentioned by him that in
the complaint that in the year 1998 he had informed the Bank of Baroda,
Barabanki that he has lost the aforesaid cheques and also reported to the
same to the SHO, Barabanki. He further alleged that the appellants herein
forged the cheques bearing No. 0628701 and presented the same in the bank
at Faridabad, and thereby alleged that they had committed an offence under
Sections 468 & 471 IPC.
On 08.02.2005 the complaint bearing No. 1343 of 2004 filed by the
Respondent No.1 herein came up for hearing before the Civil Judge, (J.D.)/
Judicial Magistrate, R.S. Ghat, Uttar Pradesh, and the Learned Magistrate
vide its order dated 08.02.2005 took cognizance of the matter and issued
summons to the Appellants.
In January 2007, to their utter shock and surprise, the appellants came
to know that the Learned Civil Judge, (J.D.)/Judicial Magistrate, R.S.Ghat,
Barabanki, Uttar Pradesh had issued non-bailable warrant and had also
5
initiated proceedings under Section 82 Cr.P.C. against them in the
complaint case No. 1343 of 2004 filed by the Respondent herein.
5. Exercise of power under Section 482 of the Code in a case of this
nature is an exception and not the rule. The section does not confer any new
powers on the High Court. It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may possibly arise.
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 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 the course of
6
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 section though wide
has to be exercised sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist. Authority of the
court exists for advancement of justice and if any attempt is made to abuse
that authority so as to produce injustice, the court has power to prevent such
abuse. It would be an abuse of process of the court to allow any action
which would result in injustice and prevent promotion of justice. In 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.
7
6. In R.P. Kapur v. State of Punjab [AIR 1960 sc 866] this Court
summarized some categories of cases where inherent power can and should
be exercised to quash the 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 allegations in the first information report or complaint
taken at their 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. (AIR para 6)
7. 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 the
function of the trial Judge. Judicial process, no doubt, should not be an
instrument of oppression or needless harassment. Court should be
circumspect and judicious in exercising discretion and should take all
8
relevant facts and circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same time the
section is not an instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death. The scope of exercise of
power under Section 482 of the Code and the categories of cases where the
High Court may exercise its power under it relating to cognizable offences
to prevent abuse of process of any court or otherwise to secure the ends of
justice were set out in some detail by this Court in State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however,
added that the power should be exercised sparingly and that too in the rarest
of the rare cases. The illustrative categories indicated by this Court are as
follows: (SCC pp. 378-79, para 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.
9
(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 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
fides 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.”
8. 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
10
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 proceedings at any stage. 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 proceedings 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
11
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 the 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 proceedings.
9. These aspects were also highlighted in State of Karnataka v. M.
Devendrappa [ 2002(3) SCC 89].
10. The case at hand squarely falls within the parameters indicated in
category (7) of Bhajan Lal’s case (supra). The factual scenario as noted
above clearly shows that the proceedings were initiated as a counterblast to
the proceedings initiated by the appellants. Continuance of such
proceedings will be nothing but an abuse of the process of law. Proceedings
are accordingly quashed.
11. Appeal is allowed.
12
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(C.K. THAKKER)
New Delhi:
November 7, 2008
13
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (Crl.) No. 199 OF 2008
Harihar Singh & Anr. …Appellants
Versus
M/s. Eicher Limited …Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
In view of the order passed in Criminal Appeal relating to SLP(Crl.)
No.861 of 2007 allowed today, this Transfer Petition is dismissed.
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(C.K. THAKKER)
14
New Delhi:
November 7, 2008
15