Full Judgment Text
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CASE NO.:
Appeal (crl.) 920 of 2003
PETITIONER:
STATE OF ORISSA AND ANR.
RESPONDENT:
SAROJ KUMAR SAHOO
DATE OF JUDGMENT: 07/12/2005
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Leave granted in SLP (Crl.) Nos. 3190 of 2004 and 3199 of 2004.
As the appeals have some common features and links, the appeals are
disposed of by the common judgment. In these appeals challenge is to the
legality of orders passed by learned Single Judges of the Orissa High Court
quashing the proceedings initiated against respondents on the basis of
first information reports lodged by the functionaries of the State of
Orissa. Criminal Appeal No. 920 of 2003, and the appeal relatable to
SLP(Crl.)No. 3199 of 2004 relates to FIR No. 61 dated 30.12.2000 where
investigation was in progress and appeal relatable to SLP (Crl.) No. 3190
of 2004 relates to FIR No. 43 dated 16.9.2000 where charge sheet had
already been filed. The High Court in each case exercised power under
Section 482 of the Code of Criminal Procedure, 1973 (in short the
‘Cr.P.C.’). In the FIR No. 61 of 2000 accusations were against respondents
Saroj Kumar Sahoo and Nalinikanta Muduli.
Background facts giving rise to the three appeals in a nutshell are as
follows:
On 8.1.1997 a trust named Nabaprabhat Trust was registered in which
respondent Saroj Kumar Sahoo was the Chairman cum Managing Trustee. It
appears that a registered sale deed No. 386 dated 4.3.1997 was registered
before Sub Registrar, Pipli in respect of about 10 acres of land. According
to the prosecution on 14.1.1997 the respondent Saroj Kumar Sahoo in the
capacity of Chairman cum Managing Trustee of Nabaprabhat Trust applied for
establishment of a new polytechnic with approval of All India Council for
Technical Education (in short ‘AICTE’), though the trust was not having the
requisite land of 20 acres and funds to the tune of Rs.25 lakhs as the
trust was registered with a corpus of a paltry sum i.e. Rs.10,000/-. Zerox
copy of the sale deed according to the prosecution was submitted to the
Director, Technical Education and Training, Orissa for establishment of
technical education institution. The respondent got land and shed on the
pretext of using the lands and sheds for bona fide industrial use in the
Mancheswar Industrial Estate.
On 25.6.1997 approval for running the technical education institutions was
accorded. On 26.7.1997 the respondent Saroj Kumar Sahoo along with Smt.
Sukanti Muduli, (mother of Sh. Nalinikanta Muduli), registered gift deed in
respect of 10 acres of land and projected to AICTE as if it had got 20
acres of land. The approval was given on 8.8.1997. On 19.11.1998 both
respondents Saroj Kumar Sahoo and Nalinikanta Muduli got District
Industries Centre Registration for setting up fabrication unit in the same
industrial shed and land though technical institutions namely Nillachal
Polytechnic and Nilachal Institute of Computer Science were shown to be
running in the same industrial land and shed. On 30.12.2000 the
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investigating agency while investigating cases registered at the
Bhubneshwar Vigilance Division police Station Case no. 25/2000 and 43/2000
against Nalinikanta Muduli and his father Sh. Bichitranand Muduli seized
some incriminating documents and therefore, FIR was registered. Though
orders were passed by the High Court for appearance before concerned Court
while rejecting the application for bail under Section 438 Cr.P.C., the
respondents never appeared before the concerned Court and on the contrary
on 19.4.2001 respondent Saroj Kumar Sahoo filed an application under
Section 482 of Cr.P.C. before the High Court for quashing FIR and connected
proceedings in Bhubneshwar Vigilance Police Station Case No. 61 of 2000
registered for alleged commission of offences under Sections 120(B), 420,
468 and 471 of Indian Penal Code, 1872 (in short the ‘IPC’) read with
Section 13(2) and 13(1)(a) of the Prevention of Corruption Act, 1988 (in
short the ‘Act’). During investigation, the Tehsildar, Pipli reported to
the investigating agency that the land mentioned in the gift deed was non-
existent. By order dated 1.7.2002 a learned Single Judge of the High Court
quashed the First Information Report in the concerned case and subsequent
proceedings during investigation, so far as Saroj Kumar Sahoo is concerned.
The learned Single Judge held that on perusal of the statements recorded
during investigation it was clear that the ingredients of the offences
alleged were not in existence, and it would be an abuse of the process of
Court and may lead to gross miscarriage of justice if the proceedings are
continued. Therefore, so far as the respondent Saroj Kumar Sahoo is
concerned the proceedings were quashed.
In the appeal relatable to SLP(Crl.) No.3190 of 2004, before the High
Court, respondent NaliniKanta Muduli had questioned legality of the
proceedings relating to Bhubneshwar Vigilance Police Station Case No. 43 of
2000. In the said allegations which were against respondent Nalinikanata
and his father Muduli (in short ‘Bichitrananda’) Bhubneshwar Vigilance PS
case no.25 of 2000 was registered against Bichitrananda on the allegation
that he had acquired assets disproportionate to his known sources of
income. During investigation business premises of Nalinikanta were searched
and incriminating materials/documents were seized for which FIR no.43 of
2000 was lodged against Nalinikanta and Bichitrananda. In the appeal
relatable to SLP (Crl.) 3199 of 2004, the challenge before the High Court
was to the FIR 61 of 2000. In these cases, learned Single Judge exercised
power under Section 482 and gave certain directions which shall be dealt
with infra.
Learned counsel for the appellant-State submitted that the scope and ambit
of Section 482 Cr.P.C. has been analysed in various cases. The power is to
be exercised sparingly and not in the manner done in the present cases. In
Criminal Appeal No. 920 of 2003 the High Court interfered at a stage when
investigation was not even over. Similar is the appeal relating to SLP
(Crl.) No. 3199 of 2004. The illegality and vulnerability are so manifest
that a bare reading of the impugned orders would show that the learned
Single Judges have not kept in view the parameters of Section 482 Cr.P.C.
in view. Though, Bichitrananda was not a party in any of the petitions
before the High Court, in the Criminal Appeal relating to SLP (Crl.) No.
3190 of 2004, learned Single Judge even quashed the proceedings against
him. Interestingly, he even referred to submissions purportedly made on
behalf of him in the impugned order though he was not a party and there was
no question of any submission being made by learned counsel on his behalf.
The illegality does not end there. Learned Single Judge has even directed
renewal of the contractor’s licence issued to Zerina Marines Pvt. Ltd.
where Nalinikanta is a Director. The allegations are of very serious
nature. The investigating agency had collected documentary and oral
evidence to substantiate the allegations and the investigation was in
progress. At that stage the interference made by the High Court is clearly
uncalled for. The allegations were, inter alia, that Nalinikanta gave false
information about his educational qualifications and working experience to
fraudulently obtain Super Class and Special Class contractor’s licenses. He
claimed to be Engineering Degree holder whereas in reality he was not so.
Similarly, he had submitted false and forged experience certificate to get
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the contractor’s licenses. Bichitrananda was a member of the Committee of
Chief Engineers which granted renewal of license which was submitted after
due date. Subsequently license grating authority cancelled Super Class
contractor’s license.
In response, learned counsel for the respondents Saroj Kumar Sahoo and
Nalinikanta Muduli submitted that the prosecuting agency is acting with
mala fide intents in order to harass Bichitranand and with a view to
unleash political vendetta the respondents and Bichitrananda are being
victimized. Continuance of proceedings against them would be sheer abuse of
the process of court. The High Court has analysed the factual position
keeping in view the principles relating to exercise of power under Section
482 Cr.P.C. and, therefore, no interference is called for. It is pointed
out that though Bichitrananda Muduli was not a party, the High Court on
going through the entire records came to hold that an innocent person like
Bichitrananda should not be penalized and, therefore, quashed the
proceedings so far as he is concerned. Without making him a party in these
proceedings the appellants cannot take away the relief granted to him by
learned Single Judge.
Exercise of power under Section 482 of the Cr.P.C. 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 Cr.P.C. It envisages three
circumstances under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Cr.P.C., (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 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 report, the court may examine the
question of fact. When a report is sought to be quashed, it is permissible
to look into the materials to assess what the report has alleged and
whether any offence is made out even if the allegations are accepted in
toto.
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
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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.
In dealing with the last category, it is important to bear in mind the
distinction between a case where there is no legal evidence or where there
is evidence which is clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on appreciation, may or may not
support the accusations. When exercising jurisdiction under Section 482 of
the Cr.P.C., 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 Cr.P.C. 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 by police officers under Section
156(1) of the Cr.P.C. except under an order of a Magistrate within the
purview of Section 155(2) of the Cr.P.C..
(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 Cr.P.C.
(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 Cr.P.C. 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 Cr.P.C. or Act concerned,
providing efficacious redress for the grievance of the aggrieved party.
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(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."
As noted above, the powers possessed by the High Court under Section 482 of
the Cr.P.C. 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. 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 Delhil, [1999] 3 SCC 259).
The above position was again re-iterated in State of Karnataka v. M.
Devendrappa and Anr., [2002] 3 SCC 89 and State of M.P. v. Awadh Kishore
Gupta and Ors., [2004] 1 SCC 691.
In Jehan Singh v. Delhi Administration, AIR (1974) SC 1140 while
considering a case under Section 561-A of the Code of Criminal Procedure,
1898 (in short the ‘Old Code’) corresponding to Section 482 of the Cr.P.C.,
it was observed as follows :
"Where at the date of filing the petition under Section 561-A, no
charge sheet or a complaint has been laid down in Court and the
matter is only at the stage of investigation by Police, the Court
cannot, in exercise of its inherent jurisdiction under Section 561-
A, interfere with the statutory powers of the Police to investigate
into the alleged offence and quash the proceedings. Even assuming
that the allegations in the FIR are correct and constitute an
offence so as to remove the legal bar to institute proceedings in
Court, the Court cannot at that stage appraise the evidence
collected by the Police in their investigation. Any petition under
Section 561-A at such a stage is, therefore, premature and
incompetent."
It is to be noted that the investigation was not complete and at that stage
it was impermissible for the High Court to look into materials, the
acceptability of which is essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Cr.P.C., it is not permissible for
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the Court to act as if it was a trial Court. Even when charge is framed at
that stage, the Court has to only prima facie be satisfied about existence
of sufficient ground for proceeding against the accused. For that limited
purpose, the Court can evaluate material and documents on records but it
cannot appreciate evidence. The Court is not required to appreciate
evidence to conclude whether the materials produced are sufficient or not
for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors.,
[1992] 3 SCC 317, it was observed that when the materials relied upon by a
party are required to be proved, no inference can be drawn on the basis of
those materials to conclude the complaint to be unacceptable. The Court
should not act on annexures to the petitions under Section 482 of the
Cr.P.C., which cannot be termed as evidence without being tested and
proved.
Learned Single Judges did not keep in view the correct position in law
while allowing the petitions filed by the respondents. It baffles us as to
how a learned Single Judge while exercising powers under Section 482
Cr.P.C. could even direct grant of renewal of licence. It is somewhat akin
to a learned Single Judge of another High Court directing creation of
criminal courts to deal with cases under a particular statute. It is
baffling how learned Single Judge referred to submissions purportedly made
by learned counsel for Bichitranand who was not even a party. It is not
clear how such submissions if any could be made. The conclusions are based
on surmises and conjectures without any material to support them. Learned
Single Judge arrived at certain conclusions which are utterly fallacious.
It is not clear as to on what basis such conclusions were arrived at. Some
of the conclusions, by way of illustration are given below:
(a) No work experience certificate is taken as criteria for issue of
fresh license.
(b) Renewal of license after three years is an automatic process.
(c) Educational qualification of Managing Director is not a criteria
for issuance of Special Class Contractor, when the allegation was of filing
false/forged educational qualification certificate.
(d) Bichitrananda did not influence any member of the Committee of
Chief Engineers though he was a member (This conclusion was arrived at
purportedly on the basis of Bichitrananda’s submission, though he was not a
party).
The grant of relief to Bichitranand when he was not a party is equally
indefensible. Therefore, we find no reason to accept the plea of learned
counsel for the respondents that he should be heard in these proceedings.
When the factual position of the case at hand is considered in the light of
principles of law highlighted, the inevitable conclusion is that the High
Court was not justified in quashing the investigation and proceedings in
the connected case and the charge sheet filed.
In the background of the legal principles set out above the High Court’s
impugned orders are indefensible and are accordingly quashed.
So far as Criminal Appeal No. 920 of 2003 and the Appeal relating to SLP
(Crl.) No. 3199 of 2004 are concerned, since the investigation is not
complete, we direct that the investigation be completed within a period of
six months from today. The respondents are directed to cooperate in the
completion of the investigation and shall appear before the investigating
officer, as and when required, without fail.
It is submitted by learned counsel for the respondents that interim
protections were given by the High Court as regards the respondents being
on bail. That protection shall continue, but in case the respondents fail
to cooperate in the investigation and do not appear before the
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investigating officer for the purpose of investigation as and when
required, the interim protection shall cease to be operative and it shall
be open to the investigating agency to move the concerned court for
cancellation of the protection which was granted. It is submitted by
learned counsel for the respondents that in case charge sheet is filed and
in the case where charge sheet is already filed, respondents shall seek
discharge. If any such motion is made the concerned Court shall deal with
the same in accordance with law. We do not express any opinion about the
acceptability or otherwise of such motion, if made.
The appeals are allowed to the aforesaid extent.