Naresh vs State of H.P. & Anr.

“7.

As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarised some of the principles under which FIR/complaints/criminal cases could be quashed in the following words:

“102.

In the backdrop of the interpretation of the various relevant provisions of the Code 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 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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 of myriad kinds of cases wherein such power should be exercised.

(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 based on 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 a private and personal grudge.” (emphasis added)

8.

Of the aforesaid criteria, clause nos. (1), (4) and (6) would be of relevance to us in this case.

In clause (1), it has been mentioned that 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, then the FIR or the complaint can be quashed.

As per clause (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 dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed.

Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceedings can be quashed.”

“8.

It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice.

9.

It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out; (iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335).

“70.

The aforesaid decisions of this Court make it clear that where the High Court is satisfied that the process of any court is being abused or likely to be abused or that the ends of justice would not be secured, it is not only empowered but also obligated under the law to exercise its inherent powers. The provision does not confer any new power on the High Court but rather saves the power which the High Court already possesses, from before the enactment of the legislation, by reason of its very existence. In exercise of its power, it would be legitimate for the High Court to quash any criminal proceedings if the High Court finds that the initiation or continuation of it may lead to abuse of process of court, and quashing of the proceedings would serve the ends of justice.”

“Section 495 has no application to the case. It applies only where the proceedings could end in an acquittal or discharge of the accused. A proceeding under Section 107 of the Criminal Procedure Code does not terminate in either of these ways. No doubt Section 117 enacts that the enquiry in such cases shall be made as nearly as may be practicable in the manner prescribed for conducting trials and recording evidence in summons cases. But the final order to be passed is expressly provided for in Section 119, Criminal Procedure Code, which lays down that "If, on an enquiry under Section 117, it is not proved that it is necessary for keeping the peace... that the person in respect of whom the enquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and, if such person is in custody only for the enquiry, shall release him or if such person is not in custody, shall discharge him." Section 118, Criminal Procedure Code, shows that if the finding is against the accused, no order is to be passed convicting him. The order should be one directing him to execute a bond. If, on the other hand, the finding is in his favour, Section 119 shows an entry is to be made on the record that it is not necessary that he should execute a bond and if he is in custody he should be released; if he is not in custody he should be discharged. In Velu Tayi Ammal v. Chidambaravelu Pillai I.L.R., (1910) Mad., 85, Miller, J., points out that the expression discharged in Section 119, Criminal Procedure Code, means merely discharged from custody and is not used in the technical sense of discharged (as opposed to acquitted) from an offence as used in Section 253, Criminal Procedure Code. No charge has to be framed against the accused in security proceedings which commence with the making of an order under Section 112, Criminal Procedure Code, by the Magistrate "setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required." We have not here, therefore, a case where the framing of a charge is contemplated at all or as the result of the proceedings an order either of discharge or acquittal is to be passed against anyone. It may be noted that even the word "accused" is not used by the legislature with reference to security proceedings, though the word is a convenient one and may not inappropriately be made use of for some purposes, but as pointed out by Miller, J., the use of the word requires caution. That learned Judge held in Velu Tayi Ammal v. Chidambaravelu Pillai, I.L.R., (1910) Mad., 85 that Section 437, Criminal Procedure Code, which empowers the High Court or a Sessions Judge to direct a further enquiry to be made where an accused person has been discharged, does not apply to orders passed under the security sections. The same view was taken by the Calcutta High Court in Queen-Empress v. Iman Mondal, I.L.R., (1900) Calc., 662.”

“The question is whether the appellate court has the power under section 423 of the Code of Criminal Procedure to order a re-trial. The authority given to an appellate court is contained in clauses (c) and (d). In an appeal from an order, the appellate court may alter or reverse such order and may make any amendment or any consequential or incidental order that may be just or proper. Under clause (b), in an appeal from a conviction, the appellate court is specifically given the power of ordering a retrial. The distinction exists for a very obvious reason. Under section 403, a person once convicted or acquitted cannot be tried for the same offence, and in an appeal from a conviction, if the conviction is reversed, the appellant may claim that he has been acquitted and he would not be liable to re-trial for the same offence. To obviate this difficulty, power has to be given to the appellate court specifically to order a re-trial. This difficulty will not arise in proceedings taken under section 107 of the Code of Criminal Procedure. A person bound over under the terms of that section is not convicted of any offence and may be re-tried in pursuance of the same order passed under section 107. The order for re-trial is, in our opinion, an incidental order. All that the Sessions Judge has done is to reverse the order binding over the applicants and then to direct that proceedings subsequent to the stage of the issue of a notice under section 107 be all cancelled and that the Magistrate do proceed from the stage of the issue of notice.”

10.

From a perusal of the aforesaid provision, it is clear that no one can be tried and convicted for the same offence or even for a different offence, but on the same facts. In the instant case, even if it is assumed that the facts narrated in the impugned complaint and the facts narrated in the proceedings under Sections 107/117 of Cr. P.C. are similar, still then, in the proceedings under Sections 107/117 of Cr. P.C., the petitioner is not to be tried and convicted for any offence. At best, he can be asked by the Magistrate to execute a bond for keeping peace and good behaviour. It is only in the proceedings initiated on the basis of a criminal complaint that the petitioner can be tried and convicted of some offence. Therefore, the provisions of Section 300 of Cr. P.C. are not attracted to the facts of the instant case. The argument of learned counsel for the petitioner, as such, is without any merit.

“12.

In Bata v. Anama Behera, 1989 SCC OnLine Ori 325: 1990 Cri LJ 1110, the learned Single Judge of the Orissa High Court observed as under:

“Though for filing an application under Section 482 there is no limitation, the application should be filed within a reasonable time, so that the progress of the case is not disturbed at a belated stage. A revision petition challenging an order can be filed within 90 days from the date of the order. Similarly, a period of 90 days, which is at par with a revision petition, should be treated as a reasonable time for filing an application under Section 482, and if it is filed beyond the period of 90 days, the applicant would have to explain the cause of the delay.”

13.

Similarly in Gopal Chauhan v. Smt Satya, 1978 SCC OnLine HP 33: 1979 Cri LJ 446, it was observed that a petition under Section 482 CrPC and Article 227 of the Constitution of India filed after expiry of 3 years from the date of summoning ought not to be entertained when the case is fixed for the stage of evidence and that too, when the petitioner has approached the Revisionist Court.

14.

Thus, although the question of inordinate delay and laches has not been dealt with in many cases but the fact remains that a party who invokes the jurisdiction of the High Court for quashing of FIR and the consequent proceedings by embarking on to show that the ingredients of Section 409 or 420 IPC are not made out, is not only required to meet the test of expeditious dispatch of approaching to the Court but he should also be able to show that the facts are so glaring that it calls for interference of the High Court rather than raising the disputed questions of fact. In the present case, the FIR was admittedly registered in the year 1999, and a charge sheet had also been filed in the same year. Therefore, the petitioner was aware of what the Court for the first time in 1999, as a complete set of the charge sheet must have been supplied to him. If at all, the petitioner felt that there was a case for quashing of the FIR, he ought to have approached the Court at the earliest possible stage. I agree with the observation made by the Orissa High Court that if a revision against an order of summoning could be filed within a period of 90 days then ordinarily a period of 90 days should have been sufficient to invoke the jurisdiction of High Court under Section 482 CrPC Admittedly, this has not been done and if the period is calculated from 1999, the present petition has been filed after more than 11 years and, therefore, there was inordinate delay and laches on the part of the petitioner for which not even an iota of Explanation is forthcoming in the petition.

15.

Even if, the contention of the learned counsel for the petitioner that the cause of action for filing the petition accrued to the petitioner only after 09.052009 when the charges against him under Section 409 and 420 IPC were framed, is taken to be correct even then from the date of framing of the charge, there has been a lapse of almost two years in invoking the jurisdiction of this Court. As I have observed hereinabove that a revision against an order ought to be filed within a period of 90 days and the said period has been held by Orissa High Court Court to be reasonable and sufficient to invoke the revisionary power of a Court, then ordinarily the said period can also be said to be reasonable in normal circumstances while preferring a petition under Section 482 CrPC while as in the instant case, there is a lapse of almost two years without there being even an iota of averment in the petition as to what the petitioner was doing during these two years.”

“At the same time, we also take notice of the fact that the investigation has been completed and the charge sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence, particularly in the absence of any specific date, time, etc. of the alleged offences, we are of the view that the appellants should prefer a discharge application before the trial court under Section 227 of the according to the State, the investigation is over and the charge sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected, forming part of the charge sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any discharge case is made out or not.”