Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1780 OF 2023
(@ SPECIAL LEAVE PETITION (CRL) NO. 3662 OF 2023)
SUPRIYA JAIN … APPELLANT
VS.
STATE OF HARYANA AND ANR. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
Leave granted.
2. Based on a complaint lodged by the second respondent, Thanesar
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city Police Station FIR No.658 dated 2 August, 2020 was registered under
sections 406, 420, 506 and 120B, Indian Penal Code (“IPC”, hereafter)
against 7 (seven) accused which, inter alia , included the petitioner.
3. Investigation of the FIR culminated in submission of a police report
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dated 14 February, 2022 in terms of section 173(2) of the Code of
Criminal Procedure (“Cr. PC”, hereafter) under sections 420, 406, 506,
379, 120B and 180 of the IPC, inter alia, against the petitioner.
Signature Not Verified
4. Perusal of the charge-sheet, however, does not reveal any role of
Digitally signed by
Harshita Uppal
Date: 2023.07.14
12:30:39 IST
Reason:
the petitioner in respect of the offence under section 379 of the IPC which
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was added in the FIR, on the complaint of the second respondent, as far
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back as on 4 August, 2020.
5. To put it briefly, the FIR stems from allegations levelled by the
second respondent of she being allured by the principal accused (who
happens to be the sister of the petitioner) to part with Rs. 45 lakh in all
(paid partly in cash and partly by RTGS) for the purpose of establishment
of a pharma company which would be engaged in the manufacture of
Ayurvedic medicines. Mainly, allegations of cheating and of fraud
practiced on her have been levelled by the second respondent against the
principal accused, her husband and various other co-accused. It was also
alleged that all the accused including the petitioner had assured the
second respondent, with the objective of carrying out the criminal
conspiracy, that the principal accused was a very hard working and
business savvy woman. Insofar as the role of the petitioner is concerned,
the second respondent alleged that the petitioner was introduced to her
by the principal accused and that she is a member of the gang which
cheated and defrauded her. Apart from the above, the FIR contains no
other allegation against the petitioner; otherwise, it is replete with
allegations levelled against the principal accused, her husband and the
other co-accused.
6. We have noticed that the charge-sheet that came to be submitted
before the criminal court does not also specify with clarity the role of the
petitioner in either cheating or defrauding the second respondent but
refers to her, at best, as a conspirator. What is also highlighted in the
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charge-sheet is that after securing anticipatory bail, the petitioner had
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joined the investigation on 30 July, 2021 and in course thereof she had
made a confessional statement which, ultimately, she declined to sign;
hence, she was also charged for having committed an offence punishable
under section 180 of the IPC.
7. Upon the charge-sheet being received, the criminal court took
cognizance of the offence and thereafter charges were framed against the
accused by the Chief Judicial Magistrate, Kurukshetra (“CJM”, hereafter) by
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an order dated 18 July, 2022. Such order was challenged by the
petitioner under section 397, Cr. PC. The Additional Sessions Judge,
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Kurukshetra, (“ASJ”, hereafter), by an order dated 27 September, 2022,
dismissed the revision as lacking in merit.
8. At this stage, the High Court’s jurisdiction under section 482, Cr. PC
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was invoked by the petitioner subjecting the charge-sheet dated 14
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February, 2022, the order of the CJM framing charges dated 18 July, 2022
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and the revisional order of the ASJ 27 September, 2022 to challenge. The
High Court referred to various judicial precedents outlining the contours of
exercise of jurisdiction by the high courts while they are approached for
quashing an FIR / a complaint and / or criminal proceedings. Relying on
such precedents and based on formation of opinion that there was
sufficient material found against the petitioner in course of investigation,
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the High Court by its impugned judgment and order dated 11 November,
2022 spurned the challenge and declined interference resulting in
dismissal of the proceedings initiated by the petitioner.
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9. Aggrieved thereby, the unsuccessful petitioner before the High
Court is in appeal before us.
10. We have heard the parties as well as perused the charge-sheet and
the other materials on record.
11. The charge-sheet sets out the contents of the FIR and refers to the
materials that were collected in course of investigation. The Investigating
Officer obtained the Call Details Record (CDR) and Customer Acquisition
Form (CAF) of the cell phones of the second respondent and the petitioner
and had also attempted to obtain certificate under section 65B of the
Indian Evidence Act by approaching the relevant service providers but
failed in his attempt. He was informed that the conversations were quite
old, hence, the requisite certificate could not be issued. The charge-sheet
also recorded that the principal accused and the co-accused were yet to
be arrested and after their arrest, separate supplementary challan would
be prepared and presented before the court; nevertheless, sufficient
evidence on the file to prepare challan against the petitioner was
available.
12. In the course of hearing of this appeal, the petitioner sought for and
was granted permission to file additional documents. Soon thereafter, the
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first respondent / State filed a reply affidavit dated 24 April, 2023.
13. The application for additional documents contains several
documents. The first purports to be the translated copy of an agreement
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dated 23 June, 2020 entered into by and between the principal accused
and the second respondent in the presence of two witnesses, whereby the
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principal accused undertook responsibility of the entire amount (Rs. 45
lakh) received by her from the second respondent and also promised to
refund to the second respondent the entire amount if, for any reason, the
work to set up the proposed company did not materialize. The second
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document is purportedly a statement of even date (23 June, 2020) made
by the principal accused undertaking to pay Rs. 47 lakh, which she had
received for business purpose from the second respondent, to the latter
within a year from date. The third document also purports to be the true
translation of a statement of the principal accused admitting that there
were discussions with the second respondent to promote and set up an
ayurvedic factory for which the parties met several times and that the
principal accused received such amount of money as indicated therein.
14. All these documents which the petitioner seeks to rely on, if
genuine, could be helpful for her defence at the trial but the same are not
material at the stage of deciding whether quashing as prayed by her
before the High Court was warranted or not. We, therefore, see no reason
to place any reliance on these three documents.
15. The fourth document which has been brought on record in support
of the petitioner’s claim for quashing of the proceedings against her is the
statement of the second respondent under section 161 of the Cr. PC.
Therein, inter alia, it was stated by the second respondent that Rs. 9.50
lakh was paid in cash by her to the principal accused at a particular house
(House No. 620 in Sector-4, Kurukshetra) where the principal accused, the
petitioner and their mother were present and that on receipt of such sum
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of money in cash, “those” (meaning thereby the principal accused, the
petitioner and their mother) … “counted the money” which was ultimately
kept with the principal accused. This, the second respondent said,
happened in the presence of her sister-in-law, Indu. It was also said by the
second respondent in such statement that the principal accused, her
husband, the petitioner and the other accused together have cheated her
in a sum of Rs. 45 lakh in the manner described therein.
16. The charge-sheet contains a list of 27 (twenty-seven) witnesses who
are proposed to be examined by the prosecution in support of the charges
framed against several accused including the petitioner. Apart from the
second respondent and others, this particular list includes Indu, the sister-
in-law of the second respondent, who is said to have been present at
House No. 620 when allegedly the money changed hands.
17. This is a case where the charges have been framed and the accused
are awaiting trial. Having regard to the totality of the facts and
circumstances, noticed above, we are of the considered opinion that the
investigation and the follow-up steps are not so patently and
unobtrusively defective or erroneous (except to the extent we propose to
mention before concluding our judgment) that allowing the trial to
progress might cause a miscarriage of justice. This is also not an
appropriate stage to delve deep into the records. It is no part of the
business of any of the courts to ascertain what the outcome of the trial
could be, ~ conviction or acquittal of the accused. The small window that
the law, through judicial precedents, provides is to look at the allegations
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in the FIR and the materials collected in course of investigation, without a
rebuttal thereof by the accused, and to form an opinion upon
consideration thereof that an offence is indeed not disclosed from it.
Unless the prosecution is shown to be illegitimate so as to result in an
abuse of the process of law, it would not be proper to scuttle it. The
principles to be borne in mind with regard to quashing of a charge /
proceedings either in exercise of jurisdiction under section 397, Cr. PC or
section 482, Cr. PC or together, as the case may be, has engaged the
attention of this Court many a time. Reference to each and every
precedent is unnecessary. However, we may profitably refer to only one
decision of this Court where upon a survey of almost all the precedents on
the point, the principles have been summarized by this Court succinctly. In
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Amit Kapoor vs. Ramesh Chandra , this Court laid down the following
guiding principles:
“27.1. Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due care
and caution is to be exercised in invoking these powers. The power of
quashing criminal proceedings, particularly, the charge framed in terms
of Section 228 of the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted
allegations as made from the record of the case and the documents
submitted therewith prima facie establish the offence or not. If the
allegations are so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied then the Court may
interfere.
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether the
case would end in conviction or not at the stage of framing of charge or
quashing of charge.
27.4. Where the exercise of such power is absolutely essential to
prevent patent miscarriage of justice and for correcting some grave
1 (2012) 9 SCC 460
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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.
27.5. Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the very initiation
or institution and continuance of such criminal proceedings, such a bar
is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the
right of the complainant or prosecution to investigate and prosecute
the offender.
27.7. The process of the court cannot be permitted to be used for an
oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly give rise
and constitute a ‘civil wrong’ with no ‘element of criminality’ and does
not satisfy the basic ingredients of a criminal offence, the court may be
justified in quashing the charge. Even in such cases, the court would
not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe
is that it cannot examine the facts, evidence and materials on record to
determine whether there is sufficient material on the basis of which the
case would end in a conviction; the court is concerned primarily with
the allegations taken as a whole whether they will constitute an offence
and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by the
investigating agencies to find out whether it is a case of acquittal or
conviction.
27.11. Where allegations give rise to a civil claim and also amount to
an offence, merely because a civil claim is maintainable, does not
mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under
Section 482, the Court cannot take into consideration external
materials given by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his acquittal. The
Court has to consider the record and documents annexed therewith by
the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied, the Court
should be more inclined to permit continuation of prosecution rather
than its quashing at that initial stage. The Court is not expected to
marshal the records with a view to decide admissibility and reliability of
the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court may be well
within its jurisdiction to frame a charge.
27.15. 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 the interest of
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justice favours, 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.
*
27.16. These are the principles which individually and preferably
cumulatively (one or more) be taken into consideration as precepts to
exercise of extraordinary and wide plenitude and jurisdiction under
Section 482 of the Code by the High Court. Where the factual
foundation for an offence has been laid down, the courts should be
reluctant and should not hasten to quash the proceedings even on the
premise that one or two ingredients have not been stated or do not
appear to be satisfied if there is substantial compliance with the
requirements of the offence.”
18. Applying the broad principles as enunciated by this Court, we hold
that it is not one of those rare cases where the uncontroverted allegations
appearing from the materials on record notwithstanding, it can
successfully be contended that even no prima facie opinion can be formed
pointing to commission of any offence by the petitioner. It is trite that the
conspiracy to commit an offence is by itself distinct from the offence to do
which the conspiracy is entered into and that such an offence, if actually
committed, would be the subject-matter of a separate charge. The
allegations that the petitioner was found counting the cash received by
the principal accused from the second respondent in the presence of a
listed witness and that she conspired with her sister, the principal
accused, to cheat and defraud the second respondent, persuade us to
record that involvement of the petitioner, howsoever limited, cannot be
ruled out at this stage and, therefore, the trial ought to be permitted to
proceed and she obliged to stand trial.
19. For the reasons aforesaid, we uphold the impugned judgment and
order of the High Court dismissing the petition under section 482, Cr. PC.
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The trial court may proceed with the trial uninfluenced by any observation
made in this judgment and order which is for the purpose of a decision on
the appeal.
20. Before parting, we consider it necessary to advert to one aspect
which though not referred to by the parties to us has been noticed from
the reply affidavit of the first respondent / State.
21. The deponent of such reply affidavit happens to be holding the post
of Deputy Superintendent of Police (“DSP”, hereafter). He has, in
paragraph 5 thereof, audaciously averred as follows:
“It is further submitted that present petitioner recorded her confession
statement dated 30.07.2021 in which she admitted to the fact that she
had met the complainant along with other accused persons and
received a sum of Rs. 9 Lakhs from the complainant, which was later
handed over to her sister & co-accused Priyanka Mittal. She further
admitted that she received a sum of Rs. 2 Lakhs as her share which
she had spent on personal expenses. It is pertinent to mention that
after getting her statement dated 30.07.2021 recorded, petitioner
refused to sign her statement for which she was also charge sheeted
for commission of an offence under section 180 IPC.”
22. We are aghast to note that an officer of the rank of DSP could be so
irresponsible while swearing an affidavit which is proposed to be filed
before this Court. An officer, who is a DSP, ought to know that in terms of
section 162, Cr. PC, no statement made by a person to a police officer in
the course of any investigation under Chapter XII of the Cr. PC, which is
reduced to writing, is required to be signed by the person making the
statement and that section 180 of the IPC gets attracted only if a
statement is refused to be signed which a public servant is legally
competent to require the person making the statement to sign. That is not
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the case here. Since the deponent has not been heard by us, we do not
propose to take the issue further but warn him to be cautious in future.
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23. It does not appear from the order dated 18 July, 2022 of the CJM
that any charge has been framed against the petitioner under section 180
of the IPC; however, if any charge thereunder by any separate order has
been framed against the petitioner, she will be at liberty to pursue her
remedy in accordance with law.
24. Except to the extent mentioned above, the appeal stands dismissed
without any order for costs.
25. A copy of this judgment shall be forwarded by the Registry to the
Director General of Police, Haryana not for the purpose of initiating any
action adverse to the interest of the deponent of the reply affidavit but for
the purpose of ensuring that police officers at all levels are made aware of
the legal provisions and the impact that ignorance of legal provisions
could have on pending criminal proceedings adversely affecting the rights
of accused, so that there is no recurrence of similar such incident.
…………………………………J
(S. RAVINDRA BHAT)
.…………………………………J
(DIPANKAR DATTA)
NEW DELHI;
JULY 04, 2023.
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