REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 288 OF 2009
(Arising out of S.L.P (Crl.) No. 3854 of 2007)
State of Punjab & Ors. .Appellants
Versus
Inder Mohan Chopra & ors. .Respondents
With
CRIMINAL APPEAL NO. 289 OF 2009
(Arising out of S.L.P (Crl.) No. 4261 of 2007)
JUDGMENT
DR. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in these appeals is to the judgment of a learned Single
Judge of the Punjab and Haryana High Court allowing two petitions filed
under Section 482 of the Code of Criminal Procedure, 1973 (in short the
`Cr.P.C.’). Respondent had made prayer that the FIR No. 152 dated
12.7.2002 registered under Section 36 of the Punjab Apartment and
Property Regulations, 1995 (in short the `Regulation’) at police station
Sultanwind, Amritsar,should be quashed. The complaint was filed on the
premises that the total area alleged to have sold was 1861.16 Sq. Yards
which was jointly held by four real brothers and the individual shares comes
to 465.29 Sq. Yards. It was alleged that the accused persons had sold joint
family property by conveying land into an unauthorised colony in violation
of the provisions of the Act and each one of them was therefore guilty of
offence punishable under Section 36 of the Act read with Section 120 (B) of
the Indian Penal Code, 1860 (in short the `IPC‘). The respondents in the
petition filed before the High Court stated that the individual shares come
below 465.29 sq. yards and, therefore, there was no violation. The stand of
the appellant before the High Court was that by selling 1861.16 Sq. Yards in
a joint Khasra to different purchasers, the accused person had violated the
provisions of the Act and, therefore, they were rightly proceeded against.
Reference was made under Section 2(k) of the Act which shows that the
expression `Person’ includes a `company, firm, cooperative society, joint
family and `body of persons’ whether incorporated or not. Therefore, it was
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pleaded that the joint holders are to be treated as one person in the eye of
law in such prosecutions. The High Court accepted the stand of the
respondents by holding that even if the property continued to be joint, it
cannot be said that the venders had sold anything more than their respective
shares.
3. Section 2(i) of the Act reads as follows:
“Colony – Colony means an area of land not less than 1000 sq.
meters divided or proposed to be divided into plots for
residential, commercial or industrial purpose, but does not
include any area of abadi deh of the village falling inside its
Lallakir or phirny or any area of land divided or proposed to
be divided.”
4. Learned counsel for the appellant submitted that the accused persons
have accepted that they had sold the land in the year 1996 and, therefore,
there was clear violation. It is submitted that the High Court had not kept in
view the parameters of Section 482 Cr.P.C.
5. Learned counsel for the respondent on the other hand supported the
impugned order of the High Court. It was also submitted that no offence
was made out.
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6. It appears that the High Court came to an abrupt conclusion that if the
property continues to be joint it cannot be said that the vendor sold anything
more than their respective shares.
7. 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 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
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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 alique concedit,
conceditur et 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
exercises of the powers court would be justified to quash any proceeding if
it finds that initiation or 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
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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.
8. 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 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.
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9. In dealing with the last category, 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
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.
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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 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 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 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.
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(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 S. 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.
6Where 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
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motive for wreaking vengeance on the accused and with a view to spite him
due to private and personal grudge.”
10. 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. 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. v. H.S.
Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State
of Bihar and another (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
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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/F.I.R. 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 or disclosed in the F.I.R. that the ingredients of the offence
or offences are disclosed and there is no material to show that the
complaint/F.I.R. 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
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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 v. R. Prasanna Kumar
and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma,
I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and
another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of
Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of
U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh
Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT
of Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT of
Delhi and others AIR 1999 SC 1216), State of Karnataka v. M.
Devendrappa and another (2002 (3) SCC 89) and State of Andhra Pradesh
v. Bajjoori Kanthaiah and Anr. [2008(11)JT 574].
11. It appears that the High Court has come to an abrupt conclusion that
the individual shares could be less than 1000 Sq.m. That is not the relevant
aspect for consideration of the issues raised. Therefore, the impugned
orders of the High Court are unsustainable and are quashed. We make it
clear that we have not expressed any opinion on the merits of the cases
which are to be adjudicated in trial.
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12. The appeals are allowed.
…………………………………………..J.
(Dr. ARIJIT PASAYAT)
………………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
February 12, 2009
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