scope and ambit of the powers of the High Court under section 482 Cr.P.C.

C.B.I Vs K.M. SHARAN

The scope and ambit of the powers of the High Court under section
482 Cr.P.C. have been elaborately dealt with by a three judge Bench of this
Court in the recent case of Inder Mohan Goswami & Anr. v. State of
Uttaranchal & Ors. [AIR 2008 SC 251]. This Court held that every court
has inherent power to act ex debito justitiae to do real and substantial
justice for the administration of which alone, the court exists, or to
prevent abuse of the process of the court. Inherent power of the court
can be exercised in the following categories of cases:
(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.
18. Inherent powers under section 482 Cr.P.C. though wide have to be
exercised sparingly, carefully and with great caution and only when such
exercise is justified by the tests specifically laid down in this
section
itself. Authority of the court exists for the advancement of justice. If
any abuse of the process leading to injustice is brought to the notice
of
the court, then the court would be justified in preventing injustice by
invoking inherent powers in absence of specific provisions in the
Statute.
19. Reference to the following cases would reveal that the courts have
consistently taken the view that they must use this extraordinary power
to
prevent injustice and secure the ends of justice. The English courts
have
also used inherent power to achieve the same objective. It is generally
agreed that the Crown Court has inherent power to protect its process
from
abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254,
Lord
Devlin stated that where particular criminal proceedings constitute an
abuse of process, the court is empowered to refuse to allow the
indictment
to proceed to trial. Lord Salmon in Director of Public Prosecutions v.
Humphrys [1977] AC 1 stressed the importance of the inherent power when
he observed that it is only if the prosecution amounts to an abuse of the
process of the court and is oppressive and vexatious that the judge has
the power to intervene. He further mentioned that the court’s power to
prevent such abuse is of great constitutional importance and should be zealously
preserved.
20. 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 of the proceedings;
(ii) where the allegations in the first information report or
complaint taken at their 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.
21. 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. The 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 should normally refrain from giving a prima facie decision in a case
where all the 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 such magnitude that they 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
ought to exercise its extraordinary jurisdiction of quashing the proceedings
at any stage.
22. This court in State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC
699 observed that the wholesome power under section 482 Cr.P.C. entitles
the High 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. This case has
been followed in a large number of subsequent cases of this court and other
courts.
23. This Court in State of Bihar & Anr. v. J.A.C. Saldanha & Ors.
(1980) 1 SCC 554 at 574 has disapproved the exercise of the extra-ordinary power
of the High Court in issuing a prerogative writ quashing the prosecution
solely on the basis of the averments made in the affidavit in the
following words:
“The High Court in exercise of the extraordinary jurisdiction committed
a grave error by making observations on seriously disputed questions of
facts taking its cue from affidavits which in such a situation would hardly
provide any reliable material. In our opinion the High Court was
clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.”
24. The classic exposition of the law is found in State of West Bengal &
Ors. v. Swapan Kumar Guha & Ors. (1982) 1 SCC 561. In this case,
Chandrachud, CJ in his concurring separate judgment has stated that “if
the FIR does not disclose the commission of a cognizable offence, the Court
would be justified in quashing the investigation on the basis of the
information as laid or received”. Justice A.N. Sen who wrote the main
judgment in that case with which Chandrachud, CJ and Varadarajan, J.
agreed has laid the legal proposition as follows:
“…the legal position is well-settled. The legal position appears to be
that if an offence is disclosed, the Court will not normally interfere
with an investigation into the case and will permit investigation into the
offence alleged to be completed; if, however, the materials do not
disclose an offence, no investigation should normally be permitted…. Once an
offence is disclosed, an investigation into the offence must necessarily
follow in the interests of justice. If, however, no offence is
disclosed, an investigation cannot be permitted, as any investigation, in the
absence of any offence being disclosed, will result in unnecessary harassment
to a party, whose liberty and property may be put to jeopardy for nothing.
The liberty and property of any individual are sacred and sacrosanct and the
Court zealously guards them and protects them. An investigation is
carried on for the purpose of gathering necessary materials for establishing and
proving an offence which is disclosed. When an offence is disclosed, a
proper investigation in the interests of justice becomes necessary to
collect materials for establishing the offence, and for bringing the
offender to book. In the absence of a proper investigation in a case
where an offence is disclosed, the offender may succeed in escaping from the
consequences and the offender may go unpunished to the detriment of the
cause of justice and the society at large. Justice requires that a
person who commits an offence has to be brought to book and must be punished
for the same. If the Court interferes with the proper investigation in a
case where an offence has been disclosed, the offence will go unpunished to
the serious detriment of the welfare of the society and the cause of justice
suffers. It is on the basis of this principle that the Court normally
does not interfere with the investigation of a case where an offence has been
disclosed…. Whether an offence has been disclosed or not must
necessarily depend on the facts and circumstances of each particular case…. If on
a consideration of the relevant materials, the Court is satisfied that an
offence is disclosed, the Court will normally not interfere with the
investigation into the offence and will generally allow the
investigation into the offence to be completed for collecting materials for proving
the offence.”
25. This court in Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao
Chandrojirao Angre & Ors. (1988) 1 SCC 692 observed in para 7 as under:
“7. The legal position is well settled that when a prosecution at the
initial stage is asked to be quashed, the test to be applied by the
court
is as to whether the uncontroverted allegations as made prima facie
establish the offence. It is also for the court to take into
consideration
any special features which appear in a particular case to consider
whether
it is expedient and in the interest of justice to permit a prosecution
to
continue. This is so on the basis that the court cannot be utilized for
any
oblique purpose and where in the opinion of the court chances of an
ultimate conviction is bleak and, therefore, no useful purpose is
likely to
be served by allowing a criminal prosecution to continue, the court may
while taking into consideration the special facts of a case also quash
the
proceeding even though it may be at a preliminary stage.”
26. In State of Bihar v. Murad Ali Khan & Ors. (1988) 4 SCC 655, this
Court
observed that the jurisdiction Under Section 482 Cr.P.C. has to be
exercised sparingly and with circumspection. The High Court should not
embark upon an enquiry whether the allegations in the complaint are
likely
to be established by evidence or not.
27. Mr. Sushil Kumar, the learned senior counsel appearing for the
respondent placed reliance on the case of State of Haryana & Ors. v.
Bhajan
Lal & Ors. (1992) Supp. 1 SCC 335. He particularly laid stress on para
1 of
the guideline in which this court observed that allegations
incorporated in
the FIR or the complaint, even if are taken at their face value and
accepted in their entirety, would not prima-facie constitute any
offence or
make out a case against the accused. On analysis of this case, in our
opinion, it really does not support the case of the respondent. The
ratio
of the judgment is clear that the extraordinary powers of the court
under
section 482 Cr.P.C. can be exercised only in exceptional circumstances
where all allegations incorporated in the FIR or the complaint do not
prime
facie constitute any offence or make out a case against the accused.
28. In Bhajan Lal’s case (supra), this court in the backdrop of
interpretation of various relevant provisions of the Cr.P.C. under
Chapter
XIV and of the principles of law enunciated by this court in a series of
decisions relating to the exercise of the extraordinary power under
Article
226 of the Constitution of India or the inherent powers under section
482
Cr.P.C. gave the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse of the
process of the court or otherwise to secure the ends of justice. This
court
in the said judgment made it clear that it may not be possible to lay
down
any precise, clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list to myriad
kinds
of cases wherein such power should be exercised. According to this
judgment, the High Court would be justified in exercising its power in
cases of following categories:-“(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 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 concerned Act (under which a
criminal
proceeding is instituted) to the institution and continuance of
the
proceedings and/or where there is a specific provision in the Code
or the concerned Act, 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.”
29. This court in Janata Dal v. H. S. Chowdhary & Ors. (1992) 4 SCC 305
observed thus:
“132. The criminal courts are clothed with inherent power to make such
orders as may be necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously or arbitrarily
exercised, but should be exercised in appropriate cases, ex debito
justitiae to do real and substantial justice for the administration of
which alone the courts exist. The powers possessed by the High Court
under
section 482 of the Code are very wide and the very plentitude of the
power
requires great caution in its exercise. Courts must be careful to see
that
its decision in exercise of this power is based on sound principles.”
30. This court in Roy V.D. v. State of Kerala (2000) 8 SCC 590 observed
thus:-“18. It is well settled that the power under section 482 Cr.P.C has to
be
exercised by the High Court, inter alia, to prevent abuse of the
process of
any court or otherwise to secure the ends of justice. Where criminal
proceedings are initiated based on illicit material collected on search
and
arrest which are per se illegal and vitiate not only a conviction and
sentence based on such material but also the trial itself, the
proceedings
cannot be allowed to go on as it cannot but amount to abuse of the
process
of the court; in such a case not quashing the proceedings would
perpetuate
abuse of the process of the court resulting in great hardship and
injustice
to the accused. In our opinion, exercise of power under section 482
Cr.P.C.
to quash proceedings in a case like the one on hand, would indeed secure
the ends of justice.”
31. This court in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd.
Sharaful
Haque & Anr. (2005) 1 SCC 122 observed thus:-“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.”
32. In Indian Oil Corporation v. NEPC India Ltd. & Ors. (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 “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.”
33. This Court in the case of Central Bureau of Investigation v. Ravi
Shankar Srivastava, IAS & Anr. (2006) 7 SCC 188 has reiterated the legal
position. The Court observed that the powers possessed by the High Court
under Section 482 Cr.P.C. are very wide and the very plenitude of the
power
requires great caution in its exercise. The Court must be careful to see
that the decision in exercise of this power is based on sound
principles.
The inherent power should not be exercised to stifle a legitimate
prosecution.

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Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

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