TMI Blog2018 (1) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... thers in any offence and not prevented, that no way establish any criminal conspiracy to mulct the petitioner as A13 with others of them, even taken for arguments sake of his version of the amount remitted by Parthasarthy was a loan and the amount remitted by Suresh was investment in any business are untrue, that by itself but for one of several circumstances to infer no way suffice to charge him with accusation of criminal conspiracy. Thus there is nothing to implicate him with criminal conspiracy, for there is nothing to show any circumstances give rise to a conclusive or irresistible inference of an agreement between him and one or more other persons to commit an offence; leave apart a few bits here and a few bits there on which the prosecution relies if any cannot be held to be adequate for connecting him with the commission of the crime of criminal conspiracy. Undisputedly from the settled legal position, there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also entitled to ask by placing any material in defence to consider from facts and circumstances, to subserve the ends of Justice, irrespective of the complaint allegations make out case for taking cognizance, where it deserves for quashing instead of continuing a lame prosecution with no purpose and by no need of inviting the accused to face the ordeal of trial. In INDER MOHAN GOSWAMI ANR VERSUS STATE OF UTTARANCHAL ORS [ 2007 (10) TMI 550 - SUPREME COURT] , It is observed that Court should balance with personal liberty, the societical interest and a warrant for arrest of accused should not be issued without proper scrutiny of facts from complaint or F.I.R in application of judicial mind and where dispute is a pure civil in nature or from reading of F.I.R the ingredients of offence are absent, the proceedings can be quashed. It is needless to say 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. Without a proper realization 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of one T.Ranga Rao-(A14-Approver)-who established an entity by name Stylish Homes Pvt. Ltd. at the instance of his classmate of A6) allegedly towards part sale consideration of a plot. The petitioner-A13 camouflaged said amount in his account as a loan which was refunded to said Parthasarthy as an afterthought, though its refunding does not absolve him from the criminal liability. That an amount of US$ 140,000 (equivalent to ₹ 65 lakhs approximately) was deposited into the petitioner s bank account in Dubai by one Mr. Suresh Challa, a plot purchaser, towards part consideration but stated to be for investing in the real estate by the petitioner. The aforesaid acts of the petitioner establish commission of offences punishable U/s 120-B r/w 420, 109 and 409 of IPC. 4. The learned Special Judge, on 16.03.2012, on the aforesaid facts taken cognizance from the CBI final report against the petitioner- A13 for the offences punishable U/s 120-B r/w 420, 109 and 409 of IPC and impugning the same a discharge petition filed by him stated pending without disposal from a long time and he therefrom stated constrained to file the quash petition impugning the final report and the cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... picion and not a mere suspicion in relation to the acts alleged. Such prima facie material should be capable of being converted into legally admissible evidence of such sterling quality which, without being tested on the touchstone of cross examination, would lead to only a hypothesis of the guilt of an accused. No such material has even been shown to be present by the Respondent. (h) That to prove the Charge of conspiracy, an obligation is cast upon the prosecution to place on record material which could be converted into substantive evidence admissible under law. There is no gain-saying the fact that in a given case, the existence of conspiracy has to be inferred from the circumstances but an agreement and meeting of mind between two individuals is a sine qua non to prove the allegation conspiracy. The incriminating material should form a chain of events leading to an irresistible conclusion about the guilt of the accused. There is not even an allegation let alone any material sought to be relied upon by the prosecution that there was any meeting of minds towards commission of any offence. (i) That the Hon ble Supreme Court of India in a landmark judgment of Kehar Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been pending for a long time as the other accused have not yet commenced arguments in their discharge petitions and also due to other reasons beyond the control of the petitioner. The wrong inclusion of the name of the petitioner in the charge sheet is causing severe loss to the unconnected business of the petitioner. The perennial delay in adjudication of the discharge application is also prejudicially affecting the professional life and business opportunities of the petitioner. 7. Therefore, the petitioner sought for allowing the criminal petition by quashing the proceedings in C.C.No.6 of 2012 against him. 8. The written arguments submitted by the learned counsel for the petitioner-A13 by reiterating the above are that: (1). The petitioner/A.13 is neither a director nor shareholder of any of the Accused companies. However, suspicion arose about his involvement in the sale of villa plots in the project because he happened to be the son of Accused No.6, who is allegedly involved directly in the commission of offence and as two plot purchasers deposited some money in his bank account directly. It is not the case of the prosecution or the prosecution witnesses that the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business in Dubai during the relevant period i.e., 2005-2011. Receiving the monies in his Dubai account is not an offence for he being a Dubai based resident. The offence on his part can be made out only if there is any material, which even prima facie shows that, he had knowledge of the purpose/reason for these monies being paid into his account. The mere fact that the amount was deposited in the account of Mr. Madhu Koneru, without his involvement, does not suggest that he had knowledge of the alleged crime much less a mensrea and intention. Therefore, even if the prosecution claims against Petitioner/Accused No.13 are taken to be true, no conviction can result against the Petitioner/Accused No.13. (8). The prosecution is cherry-picking material to arraign Madhu Koneru as an Accused. This is not permissible in law. The prosecution ought to weigh the entire material before it before arraigning any person as an Accused. (9). There is absolutely no meeting of minds between Madhu Koneru and any of the accused persons. There is no material on record which suggests that Madhu Koneru instigated any person to commit the offence of cheating/criminal breach of trust, or he engaged w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the prosecution and the statements under Sections 161 and 164 CrPC, which the prosecution seeks to rely upon in the charge sheet, even if taken as true or proved, Petitioner/Accused No.13 cannot be held to be guilty of any of the offences alleged against him. Therefore it is prayed that the cases against the Petitioner/Accused No.13 under Sections 120 r/w 420, 109 and 409 are to be quashed. 9. The oral submissions of the learned counsel for the petitioner are by reiterating the above and further that: 9(a). With regard to the allegation of receiving an amount of US $ 250,000/- (equivalent to ₹ 1.05 crores approx,) from one of the Villa plot buyers Parthasarthy, the prosecution seeks to place reliance upon the purported statement made by Parthasarthy wherein he claims that the actual value of the Villa Plots was about ₹ 50,000/- per sq. yd. Out of which ₹ 45,000/- per sq. yd. was in cash. According to this witness s claims, out of the total worth of Villa Plot allotted to him, an amount of US $ 250,000/- (balance component equivalent to ₹ 1,05,00,000/-) was transferred allegedly to the Petitioner s account on the instructions of T. Ranga Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (d) of Prevention of Corruption Act, 1988, on the basis of the orders dated 10.08.2011 of the Hon ble High Court of Andhra Pradesh in Writ Petition No.29358 of 2010 dated 23.11.2010 filed by Shri P. Shanker Rao, MLA. The allegations in brief are that Shri B.P. Acharya (A-1); M/s Emaar Properties PJSC, Dubai (A-2); M/s EHTPL (A-3); M/s Emaar MGF Land Ltd (A-4) represented by their Directors and others entered into a criminal conspiracy to cheat APIIC, at Hyderabad and in furtherance of the said criminal conspiracy, M/s Emaar Properties PJSC, Dubai (A-2) entered into an agency agreement with M/s Stylish Holmes Real Estates Pvt. Ltd., to sell villa plots at a pre-determined price which was less than the market value, without the knowledge and consent of M/s APIIC. Further, M/s EHTPL(A-3) assigned the rights of development to M/s Emaar MGF(A-4), without in-principle approval from M/s APIIC. In furtherance of the said criminal conspiracy Sri BP Acharya (A-1) abused his official position by corrupt and illegal means and he knowingly and intentionally did not object to the sale of villa plots at a lesser price and also did not object to the agreement between M/s EHTPL (A-3) and M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Purpose Vehicles (SPVs)-i.e.SPV-1 SPV-2). The Golf Course and multi-use development were to be executed through SPV-1, while Convention Centre and Business Hotel were to be developed through SPV-2. M/s APIIC and M/s Emaar Properties PJSC, Dubai(A-2) were to have equity in SPV-1 in the ratio of 26%: 74%, while in SPV-2 their equity was in the ratio of 49%:51%. All equity from M/s APIIC was on saleable land value alone. Subsequent to GO MS No.359, dt.04.09.2002, an MOU was executed between M/s APIIC and M/s Emaar Properties PJSC, Dubai on 06.11.2002, which was followed by a Collaboration Agreement dt.19.08.2003. (4). In brief the role played by the petitioner-Shri Madhu Koneru (A-13) is as follows: (i) Shri Madhu Koneru (A-13) is the son of Shri Koneru Rajendra Prasad (A-6) and is reportedly carrying out business at Dubai. (ii) Shri Madhu Koneru (A-13) received an amount of US $ 250,000 (equivalent to ₹ 1.05 crores approx.) in his account No.8900056630 maintained with the National Bank of RAS-AL-KHAIMAH on 09.08.2007 from one of the Villa Plot buyers Shri P.S. Parthasarathy. (iii) Shri P.S.Parthasarathy in his statement recorded U/s 164 CrPC stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self through illegal means. (6). That the above facts have clearly brought out strong prima facie evidence, documentary and oral, to prove that the petitioner Madhu Koneru(A-13) herein has committed the offences alleged against him in the charge sheet. (7). It is submitted that the case involves criminal conspiracy amongst 15 accused and specific role has been attributed to the petitioner-A13 herein. The transactions in question cannot be isolated and confined to the acts of the petitioner-A13 only, but the prosecution case has to be looked into in its entirety. (8). The petitioner in his application seeking quashment of the proceedings before trial court has made a bland averment as to that there is no case made out against him. Such bland statement of the petitioner cannot be considered at this stage. (9). It is submitted that at the stage of discharge, the Hon ble Court may not make a roving inquiry into the allegations made against the petitioner about the truth or otherwise. At this juncture, it has to be seen whether a prima facie case is made out against the petitioner in the final report and the documents submitted by the Investigating Agency upon which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of ₹ 96,01,75,000/- by Shri T.Ranga Rao and Shri Rajendra Prasad from about 82 or so villa plot buyers in cash only; however two of such buyers viz., Shri P.S.Parthasarathy and Shri Challa Suresh, since deposited in to the account No.8900056630, US $ 250,000 and US $ 140,000 respectively towards part of excess payment in the bank accounts of the petitioner-A13-Shri Madhu Koneru (S/o Shri Koneru Rajendra Prasad-A6) maintained at Dubai and Shri T.Ranga Rao, Shri P.S.Parthasarathy and Shri Y.V.Prasad in their respective statements U/s 164 CrPC confirmed that said amount was part of the sale consideration paid over above ₹ 5,000/- per Sq. Yd, even that was refunded by Shri Madhu Koneru on 14.10.2011 into the account of Shri P.S.Parthasarathy as if it was a return of loan amount, after registration of this case which is sought to be inferred as an attempt to give a different colour to this transaction as an after thought; leave apart the excess amount of US $ 140,000 paid by Shri Challa Suresh still remains with the petitioner-A13- Shri Madhu Koneru and these facts as per the prosecution agency establishes that the petitioner-A13-Shri Madhu Koneru has abetted the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. v. Datar Switchgear Ltd [2010 (10) SCC 479] in categorically holding that merely on the basis of the appellant's status in the company, it could not be presumed that it is the appellant who became a party to the alleged conspiracy. 15(b). No doubt, in State of Jharkhand Vs. Lalu Prasad Yadav [2017 (8) SCC 1] the Apex Court held that a general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons co-operate towards their separate ends without any privy with each other each combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only. The cases illustrate the distinction between a single general conspiracy and a number of unrelated conspiracies. 15(c). Here coming to the case on hand, it is not even a case of separate conspiracy between A6 and A13, the father and son, from entire case of prosecution, for not a version that with that separate conspiracy they hatched any plan to commit another offence or part of any offence in any larger conspiracy. Even for arguments sake taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court in Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao [2012 (9) SCC 512] held that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence. 15(f). In Ch. Laxminarayana Vs. The State of Telangana [MANU/AP/0303/2017], this Court referring to catena of expressions held at Para 10 that, there has to be cogent and convincing evidence against each of the accused to establish conspiracy. It is one who commits an overt act with knowledge of conspiracy is guilty and one who tacitly consents to the object of the conspiracy can also be made liable. The Court in appreciation must take care to see that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability cannot be fastened by way of analogy or by extension of a common law principle. When men enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts primly related to and prior to the remittances and as such only from his retention of amounts or later return with say of loan or investment cannot prove any criminal conspiracy in sale of plots for higher price and appropriation of amounts over the fixed sums. 15(j). In Ram Narain Poply Vs. CBI [2003 CrLJ 4801], the three Judge Bench of the Apex Court held on Section 120B IPC that the elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement or by any effectual means, (d) in the jurisdiction where the statute required an overt act. 15(k). The Apex Court in State of H.P. Vs Kishan Lal Pardhan [AIR 1987 SC 773 = 1987 CrLJ 709] held at para 8 on the scope of Section 120-B IPC and Section 10 of the Evidence Act that the offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or cause to be done an illegal act by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T.N. [(2005) 2 SCC 13] the three Judge Bench of the Apex Court held at Para 12 as follows: 12. .. Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators. ... The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as under: The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words common intention signifies a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary mensrea for proving that a person is guilty of conspiring to commit an offence be established. 15(p). The Constitution Bench expression of the Apex Court in Bhagwan Swarup Lal Bishan Lal V. State of Maharashtra [AIR 1965 SC 682] way back observed that the offence of conspiracy has to be established like any other offence , but for Section 10 of the Indian Evidence Act introduces the doctrine of agency subject to conditions laid therein are satisfied for act done by one is admissible against co-conspirators. But this Section will come into play only when the Court is satisfied that there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or the actionable wrong that is to say there should be a prima facie evidence that a person was party to the conspiracy before his acts can be used against his coconspirators. 15(q). In Abuthagir Vs State [2009 CrLJ 3987] referring to Mohd. Khalid, Devander Pal Singh and Kehar Singh supra, it was held that the elements of conspiracy to be (a). an object to be accomplished, (b). a plan or scheme embodying means to accomplish that object, (c). an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies, not in doing the act, or affecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough 15(t). Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy `it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.' In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This Court in Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659] supra opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar [AIR 1962 SC 876], the Apex Court Constitution Bench held that: Under Section 107(2), a person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and an order to the doing of that thing. Therefore, in order to constitute the offence of abetment by conspiracy, there must first be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing. 15(x). It is thus worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary; namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of M.P vs Sheetla Sahai Ors. [(2009) 8 SCC 617], it was held from paras 44 to 59 while dismissing the appeal of the prosecution agency holding nothing to incriminate the official respondents 1-7 as held by the High Court under Section 120B IPC and Section 13 PC Act as follows: 44. The intra-departmental and inter-departmental correspondences and note sheets to which we have adverted to hereto before clearly go to show that the authorities incharge of construction of the dam were aware of the difficulties which were being faced by the contractors. Their apprehension was that in the event the contractors were not permitted to mine stones from Katghora Quarry and other Quarries, they may leave the job as a result whereof the entire project might come to a stand-still. 45. The representations made by the contractors for the aforementioned purpose, even if to be ignored, the intradepartmental and inter-departmental correspondences cannot be. They clearly point out a clear picture as regards necessity for explaining the possibilities of extracting stones from some other mines for being used in the construction of dam. 46. We would proceed on the basis that two dive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy. 50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused. 51. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Joshi v. State of Maharashtra [(2008) 6 SCALE 469], this Court opined: 23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement. Ex facie, there is no material to show that a conspiracy had been hatched by the respondents. 53. Mr. Tulsi would suggest that the very fact that the respondent No. 1 being a Minister kept the file with him for a period of six months so as to see that the then Secretary Mr. M.S. Billore retires so as to enable him to obtain opinion of another officer would prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made. 57. In Soma Chakravarty (supra), whereupon strong reliance has been placed by Mr. Tulsi, this Court opined: 23. In a case of this nature, the learned Special Judge also should have considered the question having regard to the doctrine of parity in mind. An accused similarly situated has not been proceeded against only because, the departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completely exonerated also required to be considered. If exoneration in a departmental proceeding is the basis for not framing a charge against an accused person who is said to be similarly situated, the question which requires a further consideration was as to whether the applicant before it was similarly situated or not and/or whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy. 58. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. - Willes, J. observed in Mulcahy v. The Queen (1). 17. From the above, when it is not a case of the Petitioner-A13 was privy to any conspiracy with M/s. Emaar properties, Public Joint Stock Company (PJSC), Dubai, from the time of their entering the MOU, much less even party to agreement between M/s. Emaar and its subsidiaries and M/s. Stylish Homes and not even privy with Ranga Rao- Director of M/s. Stylish Homes and nothing even of any material with substance to say any privy between A6-Rajendraprasad and the petitioner-A13, leave apart as discussed supra even any thing to infer between father and son of any knowledge of the son about his father was privy with others in any offence and not prevented, that no way establish any criminal conspiracy to mulct the petitioner as A13 with others of them, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for mere knowledge, or even discussion, of the plan is not, per se enough. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. 19. The respondent-CBI even alleged in the charge sheet that the petitioner-A13 is also a party to the so called criminal conspiracy, but on the evaluation of the entire subject matter, there is nothing for what is discussed supra. The learned Special Judge also did not go through and evaluate the prosecution material covered by the final report in taking cognizance for respective offences against him as A13. 20. In Ashok Chaturvedi and Others Vs. Shitul H. Chanchani and Another, [(1987) 7 SCC 698] where the Apex Court held that merely because the accused has a right to plead before the trail court at the time of framing of charges that there is no material for framing of charges he is not debarred from invoking the inherent jurisdiction of the Court at the earliest point of time when the Magistrate has taken cognizance. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh [(1977) 4 SCC 39], held that the presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. --. 24. In Varala Bharath Kumar Vs. State of Telangana [2017 SAR (Cri) 975 = 2017 (9) SCC 413], it is held at Para 7 that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favors, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 28. The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the postcognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt under Section 482 CrPC are though wide that has to be exercised sparingly with great caution and to exercise ex-debito justitiae that is to do real and substantial justice for the administration of which the Courts exist, and for not to allow to use the prosecution is an instrument of harassment or private vendetta or with a motive to pressurize the accused to terms and the powers too could not be exercised to stifle a legitimate prosecution and Court should refrain from giving prima facie decision in a case where entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issue involved are of such a magnitude that they cannot be seen in the true perspective without sufficient material, though no hard and fast rule can be laid down for exercise of the extraordinary jurisdiction. It is observed that Court should balance with personal liberty, the societical interest and a warrant for arrest of accused should not be issued without proper scrutiny of facts from complaint or F.I.R in application of judicial mind and where dispute is a pure civil in nature or from reading of F.I.R the ingredients of offence are absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the earlier expressions of the Apex Court in Padamsen Vs. State of Uttar Pradesh [AIR 1961 SC 218] Manoharlal Chopra Vs. Rai Bahadur [AIR 1962 SC 527] that it is well recognized that the High Court is vested with inherent power, however, said inherent power is not to be exercised contrary to any express provision that being the intention of legislature in enacting the civil criminal procedure codes vis- -vis the law laid down by the Apex Court. 39. It was also held by the Apex Court in Popular Muthaiah Vs State rep. by Inspector of Police [2006(3) SCC-245 at paras-30 31 page-260] that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties and it can be exercised in respect of even incidental or supplemental power irrespective of nature of proceedings; as it acts ex debito justitiae-to mean to do real and substantial justice in the lis for which alone the power exists inherently. 40. The Apex Court in Popular Muthaiah (supra) referred the earlier expressions in 1) Nawabganj Sugar Mills Vs. Union of India [1976-1-SCR-803] holding that, though there are limitations on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. 47. In Chandran Ratnaswami V. K.C. Palanisamy [(2013)6 SCC 740] it was held on abuse of process and duty of the Court to quash the proceedings in such case that: 29. The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well-established and recognized doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be abuse of process of court. Lord Morris in the case of Connelly vs. Director of Public Prosecutions, (1964) 2 All ER 401 (HL) observed: There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. A court must enjoy such powers in order to enforce its rule of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process . The power (which is inherent in a court s jurisdiction) to prevent abuse of its process and to control its own proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court to quash a proceeding when 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 High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case (at p.703, para 7 of SCC): 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 37. In Indian Oil Corpn. v. NEPC India Ltd. and Others, (2006) 6 SCC 736 this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: (SCC p. 749, para 13) 13. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. 38. In the case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1 , this Court after considering series of decisions observed: 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. In the case of State of West Bengal and Others vs. Swapan Kumar Guha and Others, AIR 1982 SC 949 while examining the power of a police officer in the field of investigation of a cognizable offence, Chandrachud, C.J. has affirmed the view expressed by Mathew, J. and observed as follows: (at p.958 of AIR) 22. . There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code. . In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the 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. The 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, have inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui 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). It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be justified in framing a charge. Thus, even where there is grave suspicion if explained the same by accused the court cannot frame charge, but for discharge leave about a mere suspicion cannot be a ground to frame charge, but for discharge. 53. In L. Krishna Reddy Vs. State [(2014) 14 SCC 401], the Apex Court held that where evidence justifying prosecution is not available, the accused has to be discharged otherwise the prosecution would be an exercise of futility. 54. The Apex Court in Common Cause Vs. Union of India [(1999) 6 SCC 667] while interpreting the doctrine of Public Trust, explained the aspects of entrustment domain of property Trust Trustee etc., which are the essential ingredients in the alleged offences punishable u/sections 409 420 of IPC and Section 13 of the PC Act. 55. The Apex Court in Rishipal v. State of Uttar Pradesh [2014 (7) SCC 215], held that mere dereliction of duty does not attract any penal consequences and continuation of the criminal proceedings is a pure abuse of process of law and deserved to be quashed the proceedings. 56. In State of Bihar and Others Vs. Rajmangal Ram [2014 (11) SCC 388] the Apex Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
