Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (crl.) 427 of 2008
PETITIONER:
K.L.E Society and Ors
RESPONDENT:
Siddalingesh
DATE OF JUDGMENT: 03/03/2008
BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 427 OF 2008
(Arising out of SLP (Crl.) No.63 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the
learned Single Judge of the Karnataka High Court dismissing
the application filed before it in terms of Section 482 of the
Code of Criminal Procedure, 1973 (in short ’Cr.P.C.’). Prayer in
the application before the High Court was for quashing the
proceedings in C.C.No.273/2006 including the complaint on
the file of learned Judicial Magistrate First Class, Gulbarga.
3. Background facts in a nutshell are as under:
Respondent was appointed as a Peon in K.L.E. Society’s
Women Arts and Commerce College in the year 1992 of which
the appellant no.3 was the Principal at the relevant point of
time. Appellant no.2 was the Secretary at the relevant point of
time and the Society was represented by its Chairman, Board
of Management. He resigned from service on 17.12.2003. The
complaint was filed on 13.1.2006 alleging commission of
offence punishable under Section 403, 405 and 415 read with
Section 34 of the Indian Penal Code, 1860 (in short ’IPC’). The
learned Judicial Magistrate took cognizance and issued
process. The same was questioned by the appellants. The
stand before the High Court was that the complaint was
misconceived, no offence was made out even on indepth
scrutiny of the complaint. In fact, the respondent had filed
petition in terms of Section 33 (C) (2) of the Industrial
Disputes Act, 1947 (in short ’ID’ Act) and also filed writ
petition claiming parity in salary which was disposed of by
giving the direction to consider the respondents’ case. In the
petition in terms of Section 33-(C)(2) of the ID Act the
respondent had stated that lesser amounts were paid and
signatures for higher amounts were taken. The said petition is
pending. In the writ petition before the High Court there was
no mention about any deduction. It is stated in the complaint
that the complainant was given to understand that certain
amounts were being deducted for repayment at the time of
retirement or cessation of his job. In the notice issued on
23.11.2004, there is no mention about this aspect. It was,
therefore, submitted that the complaint was nothing but an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
abuse of process of law.
4. The complainant-respondent resisted the stand by
stating that the offences are clearly spelt out.
5. The High Court dismissed the petition holding as follows:
"The respondent lodged a private
complaint against the petitioner on 13.1.2006
along with six supporting documents. After
perusing the complaint, the documents and
the sworn statement of the respondent,
process is issued against the petitioners for the
aforesaid offences. This petition is filed for
quashing the proceedings."
6. Learned counsel for the appellants reiterated the stand
taken before the High Court. On the other hand, respondent
also reiterated the stand taken before the High Court.
7. One thing is clear on reading of High Court’s reasoning
that the High Court came to the conclusion that deductions
were made without any rhyme and reason and without any
basis. That was not the case of the complainant. On the
other hand, it tried to make out a case that the deduction was
made with an object. That obviously, was the foundation to
substantiate claim of entrustment. On a close reading of the
complaint it is clear that the ingredients of Sections 403, 405
and 415 do not exist. The statement made in the complaint
runs contrary to the averments made in the petition in terms
of Section 33-(C) (2).
8. 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 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 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). 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
to prevent abuse. It would be an abuse of process of the court
to allow any action which would result in injustice and prevent
promotion of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve
the ends of justice. When no offence is disclosed by the
complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look
into the materials to assess what the complainant has alleged
and whether any offence is made out even if the allegations are
accepted in toto.
9. 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.
10. In dealing with the last case, it is important to bear in
mind the distinction between a case where there is no legal
evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where
there is legal evidence which, on appreciation, may or may not
support the accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would not ordinarily
embark upon an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of the
trial Judge. Judicial process 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. Bhajan Lal (1992 Supp (1) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence and
make out a case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an
order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the Act concerned (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or Act
concerned, 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 motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
11. As noted above, the powers possessed by the High Court
under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent power
should not be exercised to stifle a legitimate prosecution. The
High Court being the highest court of a State should normally
refrain from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court
and the issues involved, whether factual or legal, are of
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: Janata Dal v. H. S. Chowdhary
(1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar
(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 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 a 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that
there should be meticulous analysis of the case before the trial
to find out whether the case would end in conviction or
acquittal. The complaint has to be read as a whole. If it
appears that on consideration of the allegations in the light of
the statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and there is
no material to show that the complaint is mala fide, frivolous
or vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged
at the police station and an offence is registered, then the
mala fides of the informant would be of secondary importance.
It is the material collected during the investigation and
evidence led in court which decides the fate of the accused
person. The allegations of mala fides against the informant are
of no consequence and cannot by themselves be the basis for
quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna
Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma
(AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999
SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705),
Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397),
Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC
2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC
259, State of Karnataka v. M. Devendrappa and Another (2002
(3) SCC 89) and Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque and Anr. (2005 (1) SCC 122).
12. When the factual scenario is examined in the background
of the legal principles set out above, the inevitable conclusion
is that the complaint was nothing but an abuse of the process
of law. We, therefore, allow this appeal and set aside the
proceedings in C.C.No.273/2006 pending before learned
Judicial Magistrate First Class, Gulbarga.
13. We make it clear that we have not expressed any opinion
on the merits so far as the petition under Section 33-(C)(2) of
the ID Act is concerned, which is stated to be pending.