A defamation complaint concerned allegations in a letter to the Chief Minister. The Court declined to quash the complaint or summoning order, finding a sufficient factual foundation supported by preliminary evidence and judicial application of mind. The petition was dismissed without expressing a final opinion on the merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 43 of 2011 Reserved on: 20.11.2017 Decided on: 24.11.2017
Smt. Madhavi Ramesh Dudani …Petitioner Versus Mr. Ramesh Kimatrai Dudani ..Respondent
Coram
The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
| For the petitioner: | Mr. Atul Jhingan, Advocate. |
|---|---|
| For the respondent: | Mr. Rajeev Sood, Advocate. |
| Justice Tarlok Singh Chauhan, | Judge |
By medium of this petition instituted under Article 227 of
the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short ‘Code’), the petitioner has sought quashing of private complaint filed by respondent under Section 500 of the Indian Penal Code (for short ‘Code’) and further quashing the summoning order issued by the learned trial Magistrate on 02.03.2005.
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whereby the learned trial Magistrate after recording the preliminary
evidence has ordered the summoning of the petitioner.
I have heard the learned counsel for the parties and have gone through the records of the case.
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in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code empowers this court to exercise its inherent powers to prevent abuse of process of the court and to quash the proceedings instituted on complaint, but such powers can be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations as set out in the complaint do not constitute the offence
for which cognizance is taken by the Magistrate, it is open to this court to quash the same in exercise of powers under sections 482 of the Code.
9. In the Case of Dhanalakshmi vs. R.Prasanna Kumar and
others 1990 Supp 1 SCC 686 , a three Judge Bench of Hon’ble Supreme Court held as under:-
“3. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint
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does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which the cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court.”
10. In the case of Chand Dhawan vs. Jawahar Lal and Ors.
1992 AIR (SC) 1379 , the Hon’ble Supreme Court while considering the power of the High Court under Section 482 Code of Criminal Procedure and quashing the criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and
that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of Court or not.
11. In Radhey Shyam Khemka vs.State of Bihar, (1993) 3 SCC
54 , the Hon’ble Supreme Court held as under:-
“8. The complaint made by the Deputy secretary to the government of India to the CBI mentions different circumstances
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to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately charge-sheet-has been submitted. On basis of that charge-sheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High court or by this court. If accepting the allegations made and charges levelled on their face value, the court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. This court has repeatedly pointed out that the High court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial court. The power under Section 482 of the Code has been vested in the High court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High court to hold a parallel trial, only on basis of the statements and documents collected during investigation or inquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed.”
Rehman Faizi and others (1996) 7 SCC 440 , the Hon’ble Supreme
Court made the following observations:-
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“3. Having perused the impugned judgment in the light of the complaint and its accompaniments we are constrained to say, that the High Court exceeded its jurisdiction under Section 482, Cr. P.C. in passing the impugned judgment and order. It is rather unfortunate that though the High Court referred to the decision in State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335: (1992 AIR SCW 237), wherein this Court has enumerated by way of illustration the categories of cases in which power to quash complaint or FIR can be exercised, it did not keep in mind-much less adhered to-the following note of caution given therein (SCC p.379, para 103)
"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or other wise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice".
13. In State of Madhya Pradesh vs. Awadh Kishore Gupta,
(2004) 1 SCC 691 , Hon’ble Supreme Court culled out the following principles for exercise of power under Section 482 of the Code:-
(2) To prevent abuse of the process of court.
(4) Court does not function as a court of appeal or revision.
(5) Inherent jurisdiction under Section 482 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.
(6) It would be an abuse of process of court to allow any action which would result in injustice.
(7) In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts t abuse of the process of court.
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(8) When no offence is disclosed by the complaint, the court may examine the question of fact.
(9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustained-That is the function of the trial Judge.
(10) Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. (11) 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.
(12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.
(13) 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 be itself be the basis for quashing the proceedings.”
14. In Amit Kapoor versus Ramesh Chander and another
(2012) 9 SCC 460, the Hon’ble Supreme Court laid down the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing criminal proceedings, particularly, the charge either in exercise of jurisdiction under Section 397 or Section 482 and same are summarized as follows:-
“1. Though there are no limits of the powers of the Court under Section 482 of the Code 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
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charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. 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 basic ingredients of a criminal offence are not satisfied then the Court may interfere.
3. 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.
4. 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.
5. Where there is an express legal bar enacted in any of the provisions of the Code 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.
6. 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.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. 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 does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the
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charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
9. 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. 10. It is neither necessary nor is the court called upon to hold a fullfledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
11. 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.
12. In exercise of its jurisdiction under Section 228 and/or under Section 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 therewith by the prosecution.
13. 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.
14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real
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and substantial justice for administration of which alone, the courts exist. {Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v.O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v.s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. 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 of the requirements of the offence.”
15. In Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3
SCC 330 , the Hon’ble Supreme Court has held the following steps to
be followed by the High Courts to determine the veracity of prayer
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for quashing of proceedings raised by an accused by invoking the
power vested in High Court under Section 482 of the Code:
“Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusation as false?
Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.PC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”
16. In C .P. Subhash vs. Inspector of Police Chennai and
others (2013) 11 SCC 599 , it was once again reiterated by the Hon’ble Supreme Court that where complaint prima facie makes out commission of offence, High Court in ordinary course should not
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invoke its powers to quash such proceedings, except in rare and
compelling circumstances and it was observed as under:-
“[7] The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of this Court in State of Haryana and Ors. v Ch. Bhajan Lal and Others, 1992 Supp1 SCC 335.
8. Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi, 1999 3 SCC 259where this Court observed:
"...If factual foundation for the offence has been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence."
9. To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta, 2004 1 SCC 691where this Court said:
“11...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. 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. 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
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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. 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. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code "
10. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr., 2009 3 SCC 78and Harshendra Kumar D. v. Rebatilata Koley etc., 2011 3 SCC 351reiterate the above legal position.”
another , (2014) 7 SCC 215, it was held by the Hon’ble Supreme Court that the test to be applied by the court for quashment under section 482 of the Code of Criminal Procedure is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The High Court should not convert itself into a trial court. Their Lordships have held as under:
“[10] Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482, Cr.P.C. which reads:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
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A bare perusal of Section 482, Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482, Cr.P.C.
[11] This Court in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and others, 2000 3 SCC 269, has discussed at length about the scope and ambit while exercising power under Section 482, Cr.P.C. and how cautious and careful the approach of the Courts should be. We deem it apt to extract the relevant portion from that judgment, which reads:
"Exercise of jurisdiction under inherent power as envisaged in Section 482 of the Code to have the complaint or die charge sheet quashed is an exception rather than rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution with the lodgement of First Information Report. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the fact of it does not constitute or disclose any offence alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situations as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount".
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[12] This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482, Cr.P.C. In State of Haryana v. Bhajan Lai, 1992 Supp1 SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in Central Bureau of Investigation v. Duncans Agro Industries Ltd., 1996 5 SCC 591; Rajesh Bajaj v. State NCT of Delhi, 1999 3 SCC 259and; Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr., 2005 1 SCC 122. This Court in Zandu Pharmaceuticals Ltd., observed that:
"The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. v. State of Jharkhand, 2012 12 SCC 72.
13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482, Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncon-troverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact.
[14] In the backdrop of the legal position, well settled by this Court through catena of judgments, we would like to deal with the facts of the present case which lead to filing of the
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present complaint against the appellant under Sections 34,379,411,417, 418, 420, 467, 458 and 477, I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.
[15] The facts of the case which are not in dispute, for better appreciation of the facts and arguments advanced on behalf of the appellant, it is necessary for us to have a thorough look at the letter dated 17th May, 2004 addressed to the appellant/Branch Manager by respondent No.2.
"Sir,
It is requested that the Applicant has issued Cheque Book in which from Cheque No. 083691 to 083700 were 10 cheques in Account No. 1132, out of which, payment up to Cheque No. 083696 has been received and on rest of the cheques are signature of the applicant/account holder. The above cheque book and other necessary papers were in my hand bag and I by Bus from Pikhuwa was coming to Ghaziabad then in the bus itself by mistake that bag was left and even on making to much search could not found. Its information immediately I have given at the police station, Sihani Gate.
Therefore, it is requested that you may treat the above cheques as cancelled and on that may not kindly make payment to any person.
It will be very kind of you".
A reading of the above letter makes it very clear that the complainant has instructed the appellant/Branch Manager not to pass cheques bearing Nos. 083697 to 083700, the four cheques which were already signed. There is no dispute that after submitting the above letter to the appellant, when Cheque No. 083697 was presented in the Bank on 2nd August, 2004, the same was not cleared by the appellant/Branch Manager in view of the letter of the complainant. Subsequently, the appellant was transferred from that Branch to Dhaulana Branch on 21st August, 2004, there was any instruction to the Bank to inform the account holder or police when the cheque is presented. It appears from the letter that only a request was made to the Bank that the said four cheques shall not be honoured.
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[16] If we look at the complaint and letter addressed by the complainant to the Branch Manager, the entire grievance of the complaint appears to be that basing on the written information which had teen given to the appellant on 17th May, 2004, when the stolen cheque was presented, he should have given a complaint to the police. As the appellant has not chosen to give the complaint to the police, according to the complainant the other accused hatched a conspiracy with the appellant - Branch Manager and accordingly cheated him.
[17] It is no doubt true that the Courts have to be very careful while exercising the power under Section 482, Cr.P.C. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant/Branch Manager, much less the offences alleged under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477, I.P.C. We are of the view that even assuming that the Branch Manager has violated the instructions in the complaint in letter and spirit. It all amounts to negligence in discharging official work at the maximum it can be said that it is dereliction of duty.”
Supreme Court in Binod Kumar & Ors. vs. State of Bihar & Anr. JT 2014
(12) SC 286 wherein it has been observed as follows:-
“9. In proceedings instituted on criminal complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous. It is well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, it should be exercised to see that the process of law is not abused or misused. The settled principle of law is that at the stage of quashing the complaint/FIR, the High Court is not to embark upon an enquiry as to the probability, reliability or the
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genuineness of the allegations made therein. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736, this Court enumerated the cases where an order of the Magistrate issuing process against the accused can be quashed or set aside as under:
“(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is a sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like.”
9.1. The Supreme Court pointed out that the cases mentioned are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash the proceedings.
10. In Indian Oil Corporation vs. NEPC India Ltd. And Ors. , (2006) 6 SCC 736, this Court has summarized the principles relating to exercise of jurisdiction under Section 482 Cr.P.C. to quash complaints and criminal proceedings as under:-
“The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [JT 1988 (1) SC 279], State of Haryana v. Bhajan Lal ,1992 Supp (1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591;State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 , Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd (2000) 3 SCC 269 Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 , M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
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(2005) 1 SCC 122 . The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides /malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”
in International Advanced Research Centre for Powder Metallurgy
and new materials (ARCI) and others vs. Nimra Cerglass Technics
20
Private Limited and another (2016) 1 SCC 348, has held that when a prosecution is at the initial stage is asked to be quashed, the test to be applied by the court as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State, should refrain from analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 Cr.PC, should not be exercised to stifle a legitimate prosecution. The power under Section 482 Cr.PC is to be used sparingly only in rare cases.
“13. 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 uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State should refrain from analyzing the materials which are yet to be adduced and seen in their
21
true perspective. The inherent jurisdiction of the High Court under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. Power under Section 482 Cr.P.C. is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. Vide State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 Supp1 SCC 335; State of T.N. vs. Thirukkural Perumal, 1995 2 SCC 449; and Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., 2006 7 SCC
188.
25. The above decisions reiterate the well-settled principles that while exercising inherent jurisdiction under Section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. High Court's inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the court would be justified in quashing the proceedings in the interest of justice.”
of the exposition of law by the Hon’ble Supreme Court is that while exercising its jurisdiction under Section 482 of the Code, High Court has to be both cautious as also circumspect. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint/FIR/charge-sheet etc. discloses a criminal offence or not depends upon the nature of facts alleged therein.
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“ I have, therefore, to inform you that I have come to learn from sources that Mr. Ramesh K. Dudani who is a Sindhi businessman from Mumbai and against whom I have also filed some litigation has reported accordantly made a the Star Resorts at Fagu, so that the workers are now laid off and jobless, labour Union, as it always happens are left high and dry. The learned of the Union may be in cohorts with the transgressors. The funds now said to amount over Rs.9 crores, which were borrowed from institutions, Government subsidies, etc., as well as the statutory taxes unpaid, have now been apparently, siphoned out and transferred abroad and/or to Mumbai. This is entirely possible, you will appreciate, with the connivance with the local authorities and bureaucrats even from your office. Corruption has become the order of the day. The people of H.P. must bear the burn of such official indifference. Mr. Ramesh Dudani has his office of 206, Padam Chambers 28/3925, Padam Singh Road, Karol Bagh, New Delhi.”
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be taken to either the maintainability of the complaint or the summoning order.
24
only after the recording of the preliminary evidence that the respondent could have been summoned and has, in fact, been summoned.
thus:-
“2.3.2005 Present: Complainant in person with counsel Shri Rajeev Sood, Advocate.
Precisely, the complainant has filed this complaint under Sections 499, 500 IPC against the accused person. The allegations of the complainant is that the accused wrote a letter dated 26.5.2004 to the Hon’ble Chief Minister of H.P. and the accused have leveled certain baseless and false allegations. As a result, the complainant felt humiliated and defamed in the eyes of General Public, near and dears as well as in the eyes of higher officials including in the eyes of his employees.
The complainant himself is examined as CW 1 in his preliminary evidence and furnished documents, Ex.CW1/A to Ex.CW1/O. The base of the complaint is the letter issued by accused person dated 26.05.2004 to Chief Minister, Himachal Pradesh, which is Ex.CW1/C. The accused has written in this letter, Ex.CW1/C that the funds to the amount of Rs.9 crores, which were borrowed from institutions, Govt. subsidies as well as the statutory taxes unpaid, have now been apparently, siphoned out and transferred abroad and/or to Mumbai. This was done by the accused in connivance with the local authorities and bureaucrats even from office of Chief Minister and has leveled the charge of corruption against the complainant. In view of this letter, the complainant received summons Ex.CW1/D from prescribed authority i.e. Distt. Tourism Development Officer, Shimla regarding clandestine transfer of funds from Shimla base
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industry to Mumbai. Therefore, from the bare perusal of the letter issued by the accused in favour of the Chief Minister and other documents on the record and statement of the complainant prima-faciely, it appears that accused has circulated this letter in which reputation of the complainant is in stake with intention to harm the reputation of the complainant in the eyes of general public, near and dear and among his employees. Let accused be summoned under Section 500 IPC on dated 10.5.2005.”
opinion in the main matter or any other proceedings.
(Tarlok Singh Chauhan),
Judge. November 24, 2017 sanjeev
2 issues framed by the court
Should the defamation complaint and summoning order arising from a letter to the Chief Minister be quashed under Section 482?
Did the summoning order reflect the Magistrate's application of judicial mind?
Colour shows how this judgement treated each authority
Dhanalakshmi vs. R.Prasanna Kumar and othersRelied on¶24
1990 Supp 1 SCC 686 · Who else cites this
Chand Dhawan vs. Jawahar Lal and Ors.Relied on¶29
1992 AIR (SC) 1379 · Who else cites this
Radhey Shyam Khemka vs.State of BiharRelied on¶32
(1993) 3 SCC 54 · Who else cites this
Mushtaq Ahmad vs. Mohd. Habibur Rehman Faizi and othersRelied on¶37
(1996) 7 SCC 440 · Who else cites this
State of Madhya Pradesh vs. Awadh Kishore GuptaRelied on¶43
(2004) 1 SCC 691 · Who else cites this
Amit Kapoor versus Ramesh Chander and anotherRelied on¶58
(2012) 9 SCC 460 · Who else cites this
Rajiv Thapar and others vs. Madan Lal KapoorRelied on¶81
(2013) 3 SCC 330 · Who else cites this
C.P. Subhash vs. Inspector of Police Chennai and othersRelied on¶92
(2013) 11 SCC 599 · Who else cites this
Rishipal Singh versus State of Uttar Pradesh and anotherRelied on¶105
(2014) 7 SCC 215 · Who else cites this
Binod Kumar & Ors. vs. State of Bihar & Anr.Relied on¶129
JT 2014 (12) SC 286 · Who else cites this
2 provisions across 2 enactments
Madhavi Ramesh Dudani
Ramesh Kimatrai Dudani
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
