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2017 (4) TMI 978 - SUPREME COURT

2017 (4) TMI 978 - SUPREME COURT - TMI - High court jurisdiction under Section 482 Cr. P.C. - quashing of criminal proceedings - proceedings under Section 138 of Negotiable Instruments Act - Held that:- 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 permi .....

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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 t .....

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Additional Chief Judicial Magistrate and the order of the Sessions Judge including the entire criminal proceedings are quashed. - Criminal Appeal No. 577 of 2017 ( Arising Out of SLP( Crl. ) No. 287 of 2017) - Dated:- 31-3-2017 - A. K. Sikri And Ashok Bhushan, JJ. JUDGMENT 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 fi .....

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ed from the records need to be noted for deciding the 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 ₹ 9 lakh to husband and son of the complainant for business purposes. An amount of ₹ 7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received ₹ 3 .....

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01.06.2015 wherein it was acknowledged that complainant and her husband had taken ₹ 7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took ₹ 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 31.08.2015 wherein son of complainant acknowledged that his parents have taken an amount of ₹ 14 lakh 50 thousand. Complainant and her .....

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eing Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of ₹ 9 lakh was paid to the opposite parties who had issued a cheque of ₹ 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 .....

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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 .....

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ted 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, 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 .....

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ked 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. proceedin .....

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sed 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 .....

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nd 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 .....

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od 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 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 su .....

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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 ha .....

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in the Court. QuestionOn 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. B .....

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015 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 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 Ch .....

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ainst 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: " .....

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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 prese .....

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9;s wife. Various affidavits were also received by the IO and after conducting investigation 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 App .....

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ned 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 under Section 164 Cr.P.C. of the complainant where she reitera .....

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ion 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 .....

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roceeding 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 .....

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erent 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 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 c .....

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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 rep .....

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formation 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 C .....

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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, providin .....

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on 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 c .....

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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 injus .....

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ct. 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 should take all relevant facts and circumstances into consideration before is .....

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wise 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 .....

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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. Af .....

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om 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 notice, none has appeared on behalf of Respondent 1. 10. The parameters for exercise of power under .....

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rable 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 .....

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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 injusti .....

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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 .....

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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 ₹ 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 29.05.20 .....

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nstruments Act were filed by the accused against the husband and son of the complainant which were registered in the month 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) .....

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#39;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 collecting the entire material and visiting the spot IO had come to the conclusion that no such inci .....

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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 .....

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nts 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 .....

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re 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 da .....

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e 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 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 .....

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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 offenc .....

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urt in framing charges against him, the appellant accused 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 .....

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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 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 importa .....

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en 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 delineate .....

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y, 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 appellant accused, 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 r .....

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