M. Mohammed Iqbal vs State and Syed Abudahir

R. Mala, J.—The Petitioner approaches this Court with a prayer to call for the records relating to the F.I.R. No. 16 of 2010 on the file of

the first Respondent and quash the same.

The learned Counsel for the Petitioner would submit that the Petitioner was shown as third accused in Crime No. 16 of 2010 on the file of the

first Respondent on the basis of the complaint given by the second Respondent under Sections 420, 465, 467, 468, 471 of I.P.C. He would

further submit that the Petitioner is only the attestor of the document and even though he is the son of the first accused, the offence against him

under Sections 420, 465, 467, 468, 471 of I.P.C. are not made out and hence, he prays for quashing the charge sheet and to substantiate his

arguments, he relied upon the decision reported in 2009 (4) Crimes 13 (Md. Ibrahim and Ors. v. State of Bihar and Anr.).

Per contra, the learned Counsel for the second Respondent would submit that the complaint has been given only on 01.06.2010 and the

investigation is in earlier stage. He further submit that the case is in F.I.R. Stage and the Petitioner is not only the attestor, he is the son of the

executant and to substantiate his arguments, he relied upon the decisions of Apex Court and various High Courts and prays for dismissal of this

application

Considering the rival submissions made by either side and the materials on record, on the basis of the complaint given by the second

Respondent the case in Crime No. 16 of 2010 has been registered on 01.06.2010 and in that, it was stated that the occurrence has been taken

place on 04.05.2007 and while perusing the F.I.R., it was stated that the property bearing door No. 80, Hebar Road, Beema Nagar, Tiruchirapalli

belong to the de-facto complainant/second Respondent and when he intended to sell the property, he applied for encumbrance certificate and at

that time only, he came to know that the property has been mortgaged by the first accused in favour of the second accused which was attested by

the third accused/Petitioner herein and on that basis only the case has been registered and the investigation is going on, but the charge sheet is yet

to be filed. At this juncture, it is appropriate to consider the decision relied upon by the learned Counsel for the Petitioner reported in 2009 (4)

Crimes 13 (Md. Ibrahim and Ors. v. State of Bihar and Anr.) which reads as follows:

...Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document

as defined u/s 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor

Section 471 of the Code are attracted.

As per the citation, even the document has been executed by a person who is not the owner of the property, the ingredient of section 464 is not

made out and if there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

At this juncture, it is appropriate to consider the decision relied upon by the learned Counsel for the second Respondent in K. Palanisamy v.

State: (Inspector of Police), Hasthampatty Police Station (Law and Order), Salem reported in 1991 MLJ 728, which reads as follows:

It is only in the investigation stage. For that purpose sufficient allegations are there in the First Information Report. Of courseit is the pre-rogative of

the Investigating Officer to investigate the case thoroughly and fully and file a final report positive or negative, as the case may be, depending upon

the materials collected during the course of investigation.

Since the investigation is in initial stage, F.I.R. is not an encyclopedia. The complete investigation alone will reveal the correct picture and so it is

pre-mature to quash this F.i.R. against the third accused/the Petitioner herein. It is appropriate to consider the decision in Union of India and others

Vs. B.R. Bajaj and others, , paragraph 8 of the decision reads as follows:

In the instant case the High Court while interfering at the stage of FIR holding that the FIR did not disclose any offence, as a matter of fact, took

into consideration several other records produced by Respondents 1 and 2 and also relied on the affidavit filed by Shri Banerjee and also on a

letter written by the Director, State Lotteries. This approach of the High Court, to say the least, to some extent amounts to investigation by the

court whether the offences alleged in the FIR are made out or not. In the FIR it is clearly mentioned that a false note was recorded by Respondent

1 with a view to help M/s Om Prakash & Co. and its sister concerns. It is also mentioned in the FIR that the information so far received disclosed

that before the agreement dated November 7, 1985 was signed between M/s H.K. Chugh & Co. and the Council, M/s V. Kumar Lotterywala

sent a telegram and also complaint alleging malpractices in the awarding of the contract and the same was also sent to the President and Shri B.R.

Bajaj. However, even after receiving such a telegram, Shri B.R. Bajaj did not take any steps to stop the loss to the Council because of his deep

involvement in the conspiracy and it is also clearly mentioned that the total loss caused to the Council and gain to the accused persons is to the tune

of Rs. 1,43,34,000 when compared to the offer made by the highest tenderer M/s Bharat & Co. or at least Rs. 1,13,34,000 when compared to

the next highest tenderer M/s V. Kumar Lotterywala. These are some of the important allegations in the FIR which make out a cognizable offence

at that stage and the registration of an FIR is only the beginning of the investigation. That being the case, the High Court has grossly effect in

quashing the FIR itself when several aspects of the allegations in the FIR had still to be investigated. The learned Judge of the High Court while

coming to the conclusion that the allegations in the FIR do not disclose any offence, has taken into consideration several aspects including the

guidelines, normal duty of Shri B.R. Bajaj etc. and went further and investigated whether the offences u/s 120B read with Sections 418, 468 IPC

and Sections 5(2) read with 5(1)(d) of the Prevention of Corruption Act have been made out. Suffice it to say that the learned Judge has treated

the whole matter as though it was an appeal against the order of conviction and that should never be the approach in exercising the inherent power

u/s 482 Code of Criminal Procedure particularly at the stage of FIR when the same discloses commission of a cognizable offence which had still to

be investigated thoroughly by police. We do not think that in this case we should make a further detailed consideration about the contents of the

FIR. We are satisfied that this is not at all a fit case for quashing the FIR u/s 482 CrPC. Accordingly the appeal is allowed.

In Kamaladevi Agarwal v. State of West Bengal and Ors. reported in 2002 MLJ 272, which reads as follows:

This Court has consistently held that revisional or inherent powers of quashing proceedings at the initial stage should be exercised sparingly and

only where the allegation made in the complaint or the F.I.R., even if take it at the face value and accepted in entirely not prima facie disclose the

commission of offence.

In State of Orissa and Another Vs. Saroj Kumar Sahoo, , which reads as follows:

Exercise of power u/s 482 of the Code of Criminal Procedure 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 of

Criminal Procedure 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.

...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 and Raghubir Saran (Dr.) v. State of

Bihar). 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.

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 u/s 482 of the Cr.P.C., it is not permissible for the Court to act as

if it was a trial Court.

As per the above said citations, the inherent jurisdiction under the Section 482 Cr.p.C., 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 the Courts exists. In exercise of the powers, the Court would be

justified in quashing 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.

However, 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. But no hard�and-fast rule as regards cases in which such power can be exercised, can be laid down.

Considering the fact that the case has been registered only on 01.06.2010, now it is in initial stage of investigation. In such circumstances, it is

pre-mature to decide as to whether the ingredients of offences under Sections 420, 465, 467, 468, 471 of I.P.C. have been made out or not.

After completion of the investigation and appreciation of evidence only that can be decided. When the evidence has not been collected and

produced before the Court, and the issues involved as to whether factual or legal, are of magnitude and cannot be seen in their true perspective

without sufficient materials, it is pre-mature to quash this proceedings against the Petitioner and hence, I do not find any merits in the arguments

advanced by the learned Counsel for the Petitioner that ingredients of offence under Sections 420, 465, 467, 468, 471 of I.P.C. have not been

made out. Since the case has been registered only on 01.06.2010, it is only in initial stage of investigation and hence, the petition to quash the

F.I.R. is liable to be dismissed as pre-mature.

Accordingly, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed.