Smt. Farikan vs State of Uttarakhand and Another

U.C. Dhyani, J.—The applicant, by means of present application/petition u/s 482 of Cr.P.C., seeks to set aside the impugned cognizance order dated 07.10.2008, passed by Addl. Chief Judicial Magistrate III, Dehradun in criminal case No. 1292 of 2008, State vs. Sajid and others, under Sections 323, 406, 427, 504, 506, 120B of IPC, as also the chargesheet dated 09.08.2006, submitted in case crime No. 74 of 2008. A prayer has also been made to quash the entire proceedings of aforesaid criminal case pending before selfsame court. An FIR was lodged by respondent No. 2 against six accused persons, including the applicant in police station Sahaspur, District Dehradun on 04.05.2008, in respect of offences punishable under Sections 323, 504, 506, 406, 427 of IPC. After the investigation, chargesheet was submitted against five accused persons, including the applicant in respect of selfsame offences. Cognizance on the said chargesheet was taken. Aggrieved against the said order, present application u/s 482 of Cr.P.C. was moved by Smt. Farikan only.

Learned counsel for the applicant drew attention of this Court towards the mutual settlement arrived at between respondent No. 2 and Sajid (husband of Farikan) and Farikan. It was stated in said mutual settlement dated 14.05.2008 that a dispute regarding some property, which was going on between the parties, has been settled with the intervention of some persons of the locality. The settlement was reduced to writing on the said date i.e. 14.05.2008 (copy annexed as Annexure-2). Learned counsel for the applicant also drew attention of this Court towards the extract of the Case Diary dated 26.05.2008, in which the settlement arrived at between the parties was enclosed. Annexure No. 3 to the application u/s 482 of Cr.P.C. is the copy of sale deed executed by Smt. Farikan in favour of Athar Fazal, nominee of respondent No. 2. This fact was admitted by the respondent No. 2 in his statement u/s 161 of Cr.P.C., copy of which is enclosed as Annexure-6. The statement of respondent No. 2 was recorded by the Investigating Officer on 05.05.2008, 16.05.2008 and 02.07.2008. A compromise was again entered into between the parties (Sajid and Smt. Farikan, on the one hand and Mohd. Zaid Rafi Ansari, on the other hand), on 15.05.2008. In the said compromise the effect of execution of sale deed by Farikan in favour of nominee of the respondent No. 2 was admitted. The respondent, in para No. 10 of the counter affidavit admitted that a compromise took place between respondent No. 2, husband of the applicant and the applicant herself. Learned counsel for the applicant submitted that the dispute between the parties is purely of civil nature and therefore prayed that this Court should intervene in exercise of its jurisdiction u/s 482 of Cr.P.C. It is also submitted by learned counsel for the applicant that the affidavit filed on behalf of Farikan on 28th December 2008 remains unrebutted.

Hon''ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Another, , has laid down certain principles in respect of exercise of jurisdiction u/s 482 of Cr.P.C. Those principles can be summarised as follows:

Though there ace no limits of the powers of the Court u/s 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basis ingredients of a criminal offence are not satisfied then the court may interfere.

Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

Where there is an express legal bar enacted in any provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

The court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and do not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence.

Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

In exercise of its jurisdiction u/s 228 and/or u/s 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution.

Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

Where the charge-sheet, report u/s 173(2) Cr.P.C., suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists.

The applicant, in her affidavit dated 28th December 2008, has given a chronology of the events. The affidavit has described the dispute relating to several pieces of land. It is also indicated that the compromise took place between the parties. Documents have been filed in support of what was deposed by the applicant in her affidavit. Each and every fact deposed by the deponent is duly supported by the document. It therefore transpires that the dispute between the parties is purely of civil nature. When the entire dispute between the parties is of civil nature, the guidelines laid down by the Hon''ble Apex Court, provide that this Court should step in and interfere in exercise of its jurisdiction u/s 482 of Cr.P.C. Although it is a settled law that the inherent jurisdiction u/s 482 of Cr.P.C. 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, but the instant case appears to be one such case in which such jurisdiction should be exercised. Consequently, the application/petition u/s 482 of Cr.P.C. is allowed. The impugned cognizance order dated 07.10.2008, passed by Addl. Chief Judicial Magistrate III, Dehradun in criminal case No. 1292 of 2008, State vs. Sajid and others, under Sections 323, 406, 427, 504, 506, 120B of IPC is set aside. The chargesheet dated 09.08.2006 submitted in case crime No. 74 of 2008, as well as the entire proceedings of criminal case No. 1292 of 2008, State vs. Sajid and others, in respect of selfsame offences pending before the court of Addl. Chief Judicial Magistrate III, Dehradun are hereby quashed so far as the same relates to present applicant only.