REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).729-732 OF 2010
|RAJIB RANJAN & ORS. |…..APPELLANT(S) |
| | |
|VERSUS | |
|R. VIJAYKUMAR |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
These appeals are filed by four appellants, who were
arrayed as accused persons in the complaint case No.183/2007 filed by the
respondent herein before the Court of Judicial Magistrate No.II,
Tiruchirapalli, Tamil Nadu. The complaint has been filed under Sections
120-B, 468, 420 and 500 of the Indian Penal Code (for short 'the IPC').
The learned Judicial Magistrate took cognizance of the said complaint and
summoned the appellants. The appellants (who were arrayed as accused
Nos.3, 4, 5 and 6) challenged the said summoning orders and sought
quashment of the complaint by filing petition under Section 482 of the Code
of Criminal Procedure (for short 'the Cr.P.C.) inasmuch as according to
them the allegations in the complaint did not make out any offence under
the aforesaid provisions of the IPC; the complainant had neither any locus
standi nor any legal status to prefer any such complaint; the appellants
being public servants and Gazetted officers of the State Government of
Chhattisgarh, no such criminal proceedings could be initiated against them
without prior sanction from the appointing authority as per Section 197 of
the Cr.P.C.; and the complaint was blatant misuse and abuse of the process
of Court which was filed by the complainant after exhausting the civil
remedies in which he had failed. The High Court, after examination of the
matter, has not found any merit in any of the aforesaid contentions raised
by the appellants and, consequently, dismissed their petitions.
2. Before we advert to the submissions of the appellants, which are
mirror image of what was argued before the High Court, it would be
appropriate to traverse through the relevant facts and events leading to
the filing of the said complaint by the complainant. These are as under:
The Chhattisgarh State Electricity Board (for short 'the
CSEB') issued an advertisement inviting tender (NIT) bearing No. T-136/2004
dated 02.06.2004 for its work at Hasedeo Thermal Power Station (Korba West)
towards Designing, Engineering, Testing, Supply, Erection & Commission of
HEA Ignition system. The applications received there under were required
to be processed in three stages successively namely; Part-I (EMD); Part-II
(Techno-Commercial Criteria) and Part III (Price Bid). The respondent
herein submitted an application on 26.08.2004 as Chief Executive Officer of
M/s Control Electronics India (CEI) requesting for Tender Document. The
application was rejected on the ground that it was accompanied by
incomplete documents i.e. non-submission of documentary evidence of past
performance and experience of the respondent. The respondent made a
complaint dated 06.09.2004 against appellant No. 3 herein alleging that the
Tender Documents were not issued to the respondent. It was followed by
several letters requesting for issuance of Tender Documents. He was
informed that rather than pressurising the appellants here or other
officials, he should furnish documents as per pre-qualifying condition of
the Tender. In response thereto, vide his letter dated 05.11.2004, the
respondent filed a copy of purchase order dated 28.01.2002 placed by
Jharkhand State Electricity Board (for short 'the JSEB') and assured to
supply other documentary evidence (performance report) subsequently. On
such assurance, the Tender Documents were issued to the respondent. The
respondent vide his letter dated 08.12.2004, mentioned that the Performance
Report was enclosed in Part-II. However, the said report was not found
enclosed and even after repeated requests from the CSEB to furnish
documents, respondent did not fulfill the necessary requirement. As the
respondent did not submit the necessary documents, the CSEB sought the
information from the Chief Engineer of JSEB (arrayed in the complaint as
accused No.2) vide letter dated 10.12.2004 about the performance of the
respondent. Appellant No.2 herein was also deputed to get the desired
information from JSEB. After meeting the officials of JSEB, appellant No.2
submitted his report stating that the works carried out by the respondent
were not satisfactory as many defects were found therein. As per the
appellants, even technical expertise was sought from SE (ET&I) KW (CSEB)
and found that the respondent was not technically suitable as per the
technical vetting and comparative data of SE (ET&I) KW letter dated
04.02.2005. On that basis, tender of the respondent was rejected. The
appellants submit that as an outburst, in not getting the Tender in his
favour, the respondent made complaints alleging irregularities to various
fora including the State Government, which ordered the CSEB to conduct an
enquiry. The CSEB submitted its report on 21.02.2006 stating that there
were no such irregularities and that the respondent had not furnished the
necessary documents despite repeated requests. At this stage, the
respondent filed the Civil Suit (26-A/06) before the Civil Judge Class-II,
Korba against the CSEB. However, the respondent moved an application
seeking to withdraw the said suit. In any case he did not appear on the
date fixed and accordingly the suit was dismissed for non-prosecution on
12.09.2006. The respondent herein then filed a Writ Petition No.2951 of
2006 before the Chhattisgarh High Court which was dismissed on 25.06.2007.
Even costs of Rs.25,000/- was imposed while dismissing the writ petition
with the observations that it was abuse of the process of Court.
Thereafter, SLP No.15897 of 2007 was preferred by the respondent which also
came to be dismissed vide order dated 14.09.2007. After the exhaustion of
these remedies, albeit unsuccessfully, the respondent filed a complaint
before K.K. Nagar P.S., Thirucharapalli, Tamil Nadu. The police
authorities refused to register the same on the ground that it is a civil
dispute. It is, thereafter, that the respondent filed the said Criminal
Complaint under Sections 120-B, 468, 420 & 500 IPC before the trial Court,
which was registered as C.C. No. 183/07 and the trial Court issued summons
to the appellants herein and accused No.1 (Successful Bidder) & accused
No. 2 (then Chief Engineer, JSEB). Petitions of the appellants seeking
quashing of the said complaint have been dismissed by the order of the High
Court, which is impugned before us.
3. A reading of the said complaint reveals the following broad
allegations levelled by the respondent:
(a) The respondent/complainant alleges that the appellants and accused
No.1 (Successful Bidder) & accused No. 2 (then Chief Engineer, JSEB) had
conspired secretly to disentitle the complainant’s company by creating a
discredit and for the said purpose, they were in constant touch so as to
create the said Performance Report Cum Certificate, which was issued by
accused No.2.
(b) The respondent/complainant alleges that the said conspiracy started
with an agreement entered into by the 1st accused and the appellants herein
and they planned to fabricate the said certificate dated 28.12.2004. For
this purpose, accused No. 2 was approached so as to tailor the certificate
totally discrediting the CEI (Company of the Complainant) with reference to
supply and service relationship with Patratu Thermal Power Station (for
short 'the PTPS') and JSEB.
(c) The respondent/complainant alleges that the said Certificate cum
Report is false, fabricated, motivated and malafide and the same was
contrary to the minutes of meeting that the complainant and his officials
had with the officials of PTPS and JSEB. He further alleges that for the
said reasons, the accused No. 2 was demoted from his post.
(d) The respondent/complainant alleges that on suspicion of such
Certificate Cum Report, the complainant visited the CSEB and on verifying
about the same, he found that the said tender was being given to Company of
the 1st accused against the Complainant’s Company and so he wrote a letter
to the Chief Secretary and Chairman of JSEB for verifying and cancelling
such certificate. He also wrote to many officials of the CSEB.
(e) The respondent/complainant alleges that the said Certificate is perse
defamatory as against the complainant’s company and is a crude attempt to
favour accused No.1 by spoiling the image of the Complainants company. He
further alleges that this caused a wrongful loss to the complainant’s
company by robbing its due chance to get a contract for the Boiler Plant
Units at Korba.
4. After recording preliminary evidence, the Magistrate took cognizance
of the complaint which order was challenged in the High Court. Before the
High Court, the appellants, inter alia, contended that the allegations made
by the respondent under Sections 120-B, 468, 420 & 500 of IPC pertained to
the award of tender in favour of accused No.1 in which the respondent was
also a competing party. It was also pleaded that the said complaint has
been lodged as an afterthought, having failed in the civil suit for
injunction which was dismissed and likewise, after unsuccessful attempt to
challenge the award of contract in favour of accused No.1 as the writ
petition of the respondent was dismissed by the High Court. Thus, the
lodging of complaint before Judicial Magistrate-II, Tiruchirapalli was
nothing but abuse of process of law. The appellants also contended that
the respondents herein had no locus standi nor any legal status to prefer
the said complaint, as CEI is not a registered company, having a legal
entity. The appellants further relied on Naresh Kumar Madan v. State of
M.P., (2007) 4 SCC 766 wherein it has been held that an employee working in
the Electricity Board is covered under the definition of ‘Public Servant’
and State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 2 SCC 567 for
the proposition that the absence of sanction order from the appropriate
authority under Section 197 Cr.P.C for prosecuting a public servant,
vitiates the proceedings.
5. The respondent refuted the aforesaid submissions by arguing that the
appellants herein had deliberately conspired and had committed the offences
against the complainant and therefore he has a right to lodge a complaint
for the offences committed by the appellants along with accused No. 2
(Chief Engineer, JSEB) in rejecting the tender submitted by the complainant
with a view to accept the tender of the 1st accused. It was argued that
they conspired and created false document with an idea of rejecting the
claim of the complainant. The respondent further submitted that
complainant's locus standi as a company was not questioned in the earlier
proceedings before the Chhattisgarh High Court and that the Judicial
Magistrate had applied his mind and after satisfying himself that the
complainant/respondent has got legal status to lodge the said complaint,
had taken cognizance of the offences committed by the accused persons. It
was also contended that the question of obtaining sanction under Section
197 Cr.P.C. will not arise in so far as the present complaint is concerned,
as the accused are charged for conspiracy, cheating, criminal breach of
trust and defamation. He further submitted that his allegation in the
complaint pertained to the fabrication of the Certificate-cum-Report dated
28.12.2004 which was used against him in rejecting his tender and 1st
accused was favoured with the award of work. Therefore, they had committed
offences against the complainant and damaged the reputation of the
respondent/ complainant.
6. The High Court while dismissing the petition of the appellants
recorded that:
(a) As far as mandatory provisions of Section 197 Cr.P.C is concerned,
the High Court accepted that the appellants are ‘Public Servants’. It also
observed that if the accusation against the appellants under Sections 120-
B, 468, 420 & 500 IPC are connected with the discharge of their duty viz.
if the said acts had reasonable connection with discharge of his duty then
applicability of Section 197 cannot be disputed. However, on going through
the allegations in the complaint, the High Court held that even though the
appellants are “Public Servant’, the alleged offences committed by them are
cognizable offences are not in discharge of their normal duties, in which
component of criminal breach of trust is found as one of the elements and
hence the provisions of Section 197 Cr.P.C. are not attracted.
(b) It has also been observed that the evidence regarding the allegations
made in the complaint have to be recorded and gone into by the trial court
after the evidence have been adduced by the complainant. It is only
thereafter the lower Court, can decide as to whether the allegations about
the falsity of the Certificate with conspiracy of accused No. 2 and the
appellants herein are correct or not.
7. It is clear from the above that primarily two questions arise for
consideration namely:
(a) Whether prior sanction of the competent authority to prosecute the
appellants, who are admittedly public servants, is mandatory under Section
197 of the Code?
(b) Whether, on the facts of this case, the complaint filed by the
respondent is motivated and afterthought, after losing the battle in civil
litigation and amounts to misuse and abuse of law?
We would like to remark that having regard to the facts of
this case the two issues are interconnected and narratives would be
overlapping, as would become apparent when we proceed with the discussion
hereinafter.
8. For this purpose, we would first like to point out that the High
Court has itself taken note of the judgment of this Court in the Case of
Naresh Kumar Madan (supra) to hold that the appellants are covered by the
description of public servants within the meaning of Section 21 of IPC.
Following observations therefrom have been quoted:
“The officers of the State Electricity Board are required to carry out
public functions. They are public authorities. Their action in one way or
the other may entail civil or evil consequences to the consumers of
electrical energy. They may prosecute a person. They are empowered to
enter into the house of the Board's consumers. It is only for proper and
effective exercise of those powers, the statute provides that they would be
public servants, wherefore a legal fiction has been created in favour of
those employees, when acting or purported to act in pursuance of any of the
provisions of the Act within the meaning of Section 21 of the Indian Penal
Code. Indian Penal Code denotes various persons to the public servants.
It is, however, not exhaustive. A person may be public servant in terms of
another statute. However we may notice that a person, who, inter alia, is
in the service or pay of the Government established by or under a Central,
Provincial or State Act, would also come within the purview thereof.
Section 2 (1) (c) of the 1988 Act also brings within its embrace a person
in the service or pay of a corporation established by or under a Central
Act.”
9. The question is of the applicability of Section 197 of the Code.
Said provision with which we are concerned is reproduced below:
“Prosecution of Judges and public servant. (1) When any person who is or
was a Judge or Magistrate or a public servant not removable from his office
save by or with the sanction of the Government is accused of any ofence
alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take cognizance of such
offence except with the previous sanction-
(a) In the case of a person who is employed, or as the case may be, was at
the time of commission of the alleged offence employed, in connection with
the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at
the time of commission of the alleged offence employed, in connection with
the affairs of a State, of the State Government.”
10. This provision makes it clear that if any offence is alleged to have
been committed by a public servant who cannot be removed from the office
except by or with the sanction of the Government, the Court is precluded
from taking cognizance of such offence except with the previous sanction of
the competent authority specified in this provision.
11. The sanction, however, is necessary if the offence alleged against
public servant is committed by him “while acting or purporting to act in
the discharge of his official duties”. In order to find out as to whether
the alleged offence is committed while acting or purporting to act in the
discharge of his official duty, following yardstick is provided by this
Court in Dr. Budhikota Subbarao (supra) in the following words:
“If on facts, therefore, it is prima facie found that the act or omission
for which the accused was charged had reasonable connection with discharge
of his duty then it must be held to be official to which applicability of
Section 197 of the Code cannot be disputed.”
12. This principle was explained in some more detail in the case of
Raghunath Anant Govilkar v. State of Maharashtra, which was decided by this
Court on 08.02.2008 in SLP (Crl.) No.5453 of 2007, in the following manner:
“On the question of the applicability of Section 197 of the Code of
Criminal Procedure, the principle laid down in two cases, namely,
Shreekantiah Ramayya Munipalli v. State of Bombay and Amrik Singh v. State
of Pepsu was as follows:
It is not every offence committed, by a public servant that requires
sanction for prosecution under Section 197 (1) of Criminal Procedure Cod;
nor even every act done by him while he is actually engaged in the
performance of his official duties; but if the act complained of is
directly concerned with his official duties so that, if questioned, it
could be claimed to have been done by virtue of the office, then sanction
would be necessary.
The real question therefore, is whether the acts complained of in the
present case were directly concerned with the official duties of the three
public servants. As far as the offence of criminal conspiracy punishable
under Sections 120-B read with Section 409 of the Indian Penal Code is
concerned and also Section 5(2) of the Prevention of Corruption Act, are
concerned they cannot be said to be of the nature mentioned in Section 197
of the Code of Criminal Procedure. To put it shortly, it is no part of the
duty of a public servant, while discharging his official duties, to enter
into a criminal conspiracy or to indulge in criminal misconduct. Want of
sanction under Section 197 of the Code of Criminal Procedure is, therefore,
no bar.”
13. Likewise, in Shambhoo Nath Misra v. State of U.P. and others, (1997)
5 SCC 326, the Court dealt with the subject in the following manner:
“5. The question is when the public servant is alleged to have committed
the offence of fabrication of record or misappropriation of public fund
etc. can be said to have acted in discharge of his official duties? It is
not the official duty of the public servant to fabricate the false record
and misappropriate the public funds etc. in furtherance of or in the
discharge of his official duties. The official capacity only enables him
to fabricate the record or misappropriate the public fund etc. It does not
mean that it is integrally connected or inseparably interlinked with the
crime committed in the course of same transaction, as was believed by the
learned Judge. Under these circumstances, we are of the opinion that the
view expressed by the High Court as well as by the trial Court on the
question of sanction is clearly illegal and cannot be sustained.”
14. The ratio of the aforesaid cases, which is clearly discernible, is
that even while discharging his official duties, if a public servant enters
into a criminal conspiracy or indulges in criminal misconduct, such
misdemeanor on his part is not to be treated as an act in discharge of his
official duties and, therefore, provisions of Section 197 of the Code will
not be attracted. In fact, the High Court has dismissed the petitions
filed by the appellant precisely with these observations namely the
allegations pertain to fabricating the false records which cannot be
treated as part of the appellants normal official duties. The High Court
has, thus, correctly spelt out the proposition of law. The only question
is as to whether on the facts of the present case, the same has been
correctly applied. If one looks into the allegations made in the complaint
as stand alone allegations, probably what the High Court has said may seem
to be justified. However, a little deeper scrutiny into the circumstances
under which the complaint came to be filed would demonstrate that
allegation of fabricating the false record is clearly an afterthought and
it becomes more than apparent that the respondent has chosen to level such
a make belief allegation with sole motive to give a shape of criminality to
the entire dispute, which was otherwise civil in nature. As noted above,
the respondent had in fact initiated civil action in the form of suit for
injunction against the award of the contract in which he failed. Order of
civil court was challenged by filing writ petition in the High Court. Plea
of the respondent was that the action of the Department in rejecting his
tender and awarding the contract to accused No.1 was illegal and motivated.
Writ petition was also dismissed with cost. These orders attained
finality. It is only thereafter criminal complaint is filed with the
allegation that accused No.1 is favoured by creating a false certificate
dated 28.12.2004. We would dilate this discussion with some elaboration,
hereinafter.
15. As already pointed above, tender was floated by the CSEB and the CEI
herein was one of the parties who had submitted its bid through the
respondent. However, tender conditions mentioned certain conditions and it
was necessary to fulfill those conditions to become eligible to submit the
bid and have it considered. As per the appellants, tender of the
respondent was rejected on the ground that plant and equipment erected by
the respondent at Patratu Thermal Power Station, Patratu, Jharkhand was not
functioning well. This information was received by the Tender Committee
from JSEB. When the report was sought by CSEB in December, 2004, the
Tender Committee took the view that the respondent did not fulfill the pre-
qualifying conditions and rejected his tender. Before doing so, the
respondent was asked time and again to send the performance report which he
had promised but he failed to comply even when he had assured to do the
needful. In fact, that itself was sufficient to reject that bid of the
respondent as it was non compliant with the tender conditions. Still, in
order to verify the claim of the respondent and to consider his bid on
merits, though not strictly required, the appellant R.C. Jain was deputed
to get the desired information from JSEB. He met the officials of JSEB
and submitted his report to the effect that the works carried out by the
respondent at Patratu Thermal Power Station was not satisfactory. Even,
Shri B.M. Ram, General Manager of the said Power Station furnished his
report dated 28.12.2004 wherein it was summed up that due to the defects in
the scanning system, supplied by the respondent, generation had been
adversely effected and the said Electricity Board was not satisfied with
the equipment supplied by the respondent. In spite of the aforesaid
material, the tender Committee acted with caution and even the technical
expertise was sought. Even the report of the technical experts went
against the respondent as it opined that the respondent was not technically
suitable on the technical vetting and comparative data. On the basis of
the aforesaid material, the respondent's tender document was not opened and
returned and he was informed accordingly. All this has clearly happened in
furtherance of and in discharge of the official duties by the appellant.
In the facts of the present case, we are of the view that allegations of
fabricating the records are mischievously made as an afterthought, just to
give colour of criminality to a civil case.
16. As pointed out above, the respondent had even filed the civil suit
challenging the decision of the Electricity Board in returning his tender
documents on the ground that the same were not as per pre-qualifying
conditions of the tender. He had thus resorted to the civil remedy.
However, he failed therein as for the reasons best known to him, he sought
to withdrew the same and accordingly the same was dismissed for non-
prosecution. It is trite that once the suit is withdrawn, that acts as
constructive res judicata having regard to the provision of Order XXIII
Rule 1 of the Code of Civil Procedure. Also, when suit is dismissed under
Order IX Rule 8 CPC, fresh suit under Order IX Rule 9 is barred. The legal
implication would be of that the attempt of the respondent in challenging
the decision of the Tender Committee in not considering his tender remained
unfaulted. Even when the respondent himself invited order of dismissal in
the civil suit, curiously enough, he filed a writ petition against the
order passed in the civil court dismissing his suit for non-prosecution,
but the same was also dismissed by the High Court on 25.06.2007 and even a
cost of Rs.25,000/- was imposed on the respondent as the said writ petition
was perceived by the High Court as 'abuse of process of the court'. SLP
preferred by the respondent was also dismissed by this Court on 14.09.2007.
It is only thereafter the respondent filed the criminal complaint out of
which present proceedings emanate. No doubt, the respondent in his
complaint has right to colour his complaint by levelling the allegations
that the appellants herein fabricated the records. However, on the facts
of this case, it becomes difficult to eschew this allegation of the
respondent and we get an uncanny feeling that the contents of FIR with
these allegations are a postscript of the respondent after losing the
battle in civil proceedings which were taken out by him challenging the
action of the Department in rejecting his tender. When he did not succeed
in the said attempt, he came out with the allegations of forgery. It is
thus becomes clear that the action of the respondent in filing the criminal
complaint is not bonafide and amounts to misuse and abuse of the process of
law.
17. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court
has laid down principles on which Court can quash the criminal proceedings
under Section 482 of Cr.P.C. These are as follows:
“102.(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 Act concerned (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
Act concerned, 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.”
Principle Nos.6 and 7 are clearly applicable in the present
case.
18. Having regard to the circumstances narrated and explained above, we
are also of the view that attempt is made by the respondent to convert a
case with civil nature into criminal prosecution. In a case like this,
High Court would have been justified in quashing the proceedings in
exercise of its inherent powers under Section 482 of the Code. It would be
of benefit to refer to the judgment in the case of Indian Oil Corpn. v.
NEPC India Ltd. and others, (2006) 6 SCC 736, wherein the Court adversely
commented upon this very tendency of filing criminal complaints even in
cases relating to commercial transaction for which civil remedy is
available is available or has been availed. The Court held that the
following observations of the Court in this behalf are taken note of:
“13. While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately protect the interests
of lenders/creditors. Such a tendency is seen in several family disputes
also, leading to irretrievable breakdown of marriages/families. There is
also an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri v. State of U.P., (2000) 2
SCC 636, this Court observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are not a
short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles on the basis
of which the High Court is to exercise its jurisdiction under Section 482
of the Code. Jurisdiction under this section has to be exercised to
prevent abuse of the process of any court or otherwise to secure the ends
of justice.”
14. While no one with a legitimate cause or grievance should be prevented
from seeking remedies available in criminal law, a complainant who
initiates or persists with a prosecution, being fully aware that the
criminal proceedings are unwarranted and his remedy lies only in civil law,
should himself be made accountable, at the end of such misconceived
criminal proceedings, in accordance with law. One positive step that can
be taken by the courts, to curb unnecessary prosecutions and harassment of
innocent parties, is to exercise their power under Section 250 CrPC more
frequently, where they discern malice or frivolousness or ulterior motives
on the part of the complainant. Be that as it may.”
19. In Inder Mohan Goswami and another v. State of Uttaranchal and
others, (2007) 12 SCC 1, the Court reiterated the scope and ambit of power
of the High Court under Section 482 of the Code in the following words:
“23. This Court in a number of cases has laid down the scope and ambit of
courts' powers under Section 482 CrPC. Every High Court has inherent power
to act ex debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse of the process
of the court. Inherent power under Section 482 CrPC can be exercised:
(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.
24. Inherent powers under Section 482 CrPC 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 could would be justified in preventing injustice by
invoking inherent powers in absence of specific provisions in the statute.
Discussion of decided cases
25. 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. DPP, 1 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 DPP 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 jealously preserved.
46. The court must ensure that criminal prosecution is not used as an
instrument of harassment or for seeking private vendetta or with an
ulterior motive to pressurise the accused. On analysis of the
aforementioned cases, we are of the opinion that it is neither possible nor
desirable to lay down an inflexible rule that would govern the exercise of
inherent jurisdiction. Inherent jurisdiction of the High Courts under
Section 482 CrPC though wide has to be exercised sparingly, carefully and
with caution and only when it is justified by the tests specifically laid
down in the statute itself and in the aforementioned cases. In view of the
settled legal position, the impugned judgment cannot be sustained.”
20. As a result, these appeals are allowed. Order of the High Court is
set aside. Consequently, cognizance taken by the learned Magistrate and
orders summoning the appellants as accused is hereby set aside resulting
into the dismissal of the said complaint. There shall however be no order
as to costs.
…......................................J.
(J. Chelameswar)
…......................................J.
(A.K. Sikri)
New Delhi;
October 14, 2014.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).729-732 OF 2010
|RAJIB RANJAN & ORS. |…..APPELLANT(S) |
| | |
|VERSUS | |
|R. VIJAYKUMAR |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
These appeals are filed by four appellants, who were
arrayed as accused persons in the complaint case No.183/2007 filed by the
respondent herein before the Court of Judicial Magistrate No.II,
Tiruchirapalli, Tamil Nadu. The complaint has been filed under Sections
120-B, 468, 420 and 500 of the Indian Penal Code (for short 'the IPC').
The learned Judicial Magistrate took cognizance of the said complaint and
summoned the appellants. The appellants (who were arrayed as accused
Nos.3, 4, 5 and 6) challenged the said summoning orders and sought
quashment of the complaint by filing petition under Section 482 of the Code
of Criminal Procedure (for short 'the Cr.P.C.) inasmuch as according to
them the allegations in the complaint did not make out any offence under
the aforesaid provisions of the IPC; the complainant had neither any locus
standi nor any legal status to prefer any such complaint; the appellants
being public servants and Gazetted officers of the State Government of
Chhattisgarh, no such criminal proceedings could be initiated against them
without prior sanction from the appointing authority as per Section 197 of
the Cr.P.C.; and the complaint was blatant misuse and abuse of the process
of Court which was filed by the complainant after exhausting the civil
remedies in which he had failed. The High Court, after examination of the
matter, has not found any merit in any of the aforesaid contentions raised
by the appellants and, consequently, dismissed their petitions.
2. Before we advert to the submissions of the appellants, which are
mirror image of what was argued before the High Court, it would be
appropriate to traverse through the relevant facts and events leading to
the filing of the said complaint by the complainant. These are as under:
The Chhattisgarh State Electricity Board (for short 'the
CSEB') issued an advertisement inviting tender (NIT) bearing No. T-136/2004
dated 02.06.2004 for its work at Hasedeo Thermal Power Station (Korba West)
towards Designing, Engineering, Testing, Supply, Erection & Commission of
HEA Ignition system. The applications received there under were required
to be processed in three stages successively namely; Part-I (EMD); Part-II
(Techno-Commercial Criteria) and Part III (Price Bid). The respondent
herein submitted an application on 26.08.2004 as Chief Executive Officer of
M/s Control Electronics India (CEI) requesting for Tender Document. The
application was rejected on the ground that it was accompanied by
incomplete documents i.e. non-submission of documentary evidence of past
performance and experience of the respondent. The respondent made a
complaint dated 06.09.2004 against appellant No. 3 herein alleging that the
Tender Documents were not issued to the respondent. It was followed by
several letters requesting for issuance of Tender Documents. He was
informed that rather than pressurising the appellants here or other
officials, he should furnish documents as per pre-qualifying condition of
the Tender. In response thereto, vide his letter dated 05.11.2004, the
respondent filed a copy of purchase order dated 28.01.2002 placed by
Jharkhand State Electricity Board (for short 'the JSEB') and assured to
supply other documentary evidence (performance report) subsequently. On
such assurance, the Tender Documents were issued to the respondent. The
respondent vide his letter dated 08.12.2004, mentioned that the Performance
Report was enclosed in Part-II. However, the said report was not found
enclosed and even after repeated requests from the CSEB to furnish
documents, respondent did not fulfill the necessary requirement. As the
respondent did not submit the necessary documents, the CSEB sought the
information from the Chief Engineer of JSEB (arrayed in the complaint as
accused No.2) vide letter dated 10.12.2004 about the performance of the
respondent. Appellant No.2 herein was also deputed to get the desired
information from JSEB. After meeting the officials of JSEB, appellant No.2
submitted his report stating that the works carried out by the respondent
were not satisfactory as many defects were found therein. As per the
appellants, even technical expertise was sought from SE (ET&I) KW (CSEB)
and found that the respondent was not technically suitable as per the
technical vetting and comparative data of SE (ET&I) KW letter dated
04.02.2005. On that basis, tender of the respondent was rejected. The
appellants submit that as an outburst, in not getting the Tender in his
favour, the respondent made complaints alleging irregularities to various
fora including the State Government, which ordered the CSEB to conduct an
enquiry. The CSEB submitted its report on 21.02.2006 stating that there
were no such irregularities and that the respondent had not furnished the
necessary documents despite repeated requests. At this stage, the
respondent filed the Civil Suit (26-A/06) before the Civil Judge Class-II,
Korba against the CSEB. However, the respondent moved an application
seeking to withdraw the said suit. In any case he did not appear on the
date fixed and accordingly the suit was dismissed for non-prosecution on
12.09.2006. The respondent herein then filed a Writ Petition No.2951 of
2006 before the Chhattisgarh High Court which was dismissed on 25.06.2007.
Even costs of Rs.25,000/- was imposed while dismissing the writ petition
with the observations that it was abuse of the process of Court.
Thereafter, SLP No.15897 of 2007 was preferred by the respondent which also
came to be dismissed vide order dated 14.09.2007. After the exhaustion of
these remedies, albeit unsuccessfully, the respondent filed a complaint
before K.K. Nagar P.S., Thirucharapalli, Tamil Nadu. The police
authorities refused to register the same on the ground that it is a civil
dispute. It is, thereafter, that the respondent filed the said Criminal
Complaint under Sections 120-B, 468, 420 & 500 IPC before the trial Court,
which was registered as C.C. No. 183/07 and the trial Court issued summons
to the appellants herein and accused No.1 (Successful Bidder) & accused
No. 2 (then Chief Engineer, JSEB). Petitions of the appellants seeking
quashing of the said complaint have been dismissed by the order of the High
Court, which is impugned before us.
3. A reading of the said complaint reveals the following broad
allegations levelled by the respondent:
(a) The respondent/complainant alleges that the appellants and accused
No.1 (Successful Bidder) & accused No. 2 (then Chief Engineer, JSEB) had
conspired secretly to disentitle the complainant’s company by creating a
discredit and for the said purpose, they were in constant touch so as to
create the said Performance Report Cum Certificate, which was issued by
accused No.2.
(b) The respondent/complainant alleges that the said conspiracy started
with an agreement entered into by the 1st accused and the appellants herein
and they planned to fabricate the said certificate dated 28.12.2004. For
this purpose, accused No. 2 was approached so as to tailor the certificate
totally discrediting the CEI (Company of the Complainant) with reference to
supply and service relationship with Patratu Thermal Power Station (for
short 'the PTPS') and JSEB.
(c) The respondent/complainant alleges that the said Certificate cum
Report is false, fabricated, motivated and malafide and the same was
contrary to the minutes of meeting that the complainant and his officials
had with the officials of PTPS and JSEB. He further alleges that for the
said reasons, the accused No. 2 was demoted from his post.
(d) The respondent/complainant alleges that on suspicion of such
Certificate Cum Report, the complainant visited the CSEB and on verifying
about the same, he found that the said tender was being given to Company of
the 1st accused against the Complainant’s Company and so he wrote a letter
to the Chief Secretary and Chairman of JSEB for verifying and cancelling
such certificate. He also wrote to many officials of the CSEB.
(e) The respondent/complainant alleges that the said Certificate is perse
defamatory as against the complainant’s company and is a crude attempt to
favour accused No.1 by spoiling the image of the Complainants company. He
further alleges that this caused a wrongful loss to the complainant’s
company by robbing its due chance to get a contract for the Boiler Plant
Units at Korba.
4. After recording preliminary evidence, the Magistrate took cognizance
of the complaint which order was challenged in the High Court. Before the
High Court, the appellants, inter alia, contended that the allegations made
by the respondent under Sections 120-B, 468, 420 & 500 of IPC pertained to
the award of tender in favour of accused No.1 in which the respondent was
also a competing party. It was also pleaded that the said complaint has
been lodged as an afterthought, having failed in the civil suit for
injunction which was dismissed and likewise, after unsuccessful attempt to
challenge the award of contract in favour of accused No.1 as the writ
petition of the respondent was dismissed by the High Court. Thus, the
lodging of complaint before Judicial Magistrate-II, Tiruchirapalli was
nothing but abuse of process of law. The appellants also contended that
the respondents herein had no locus standi nor any legal status to prefer
the said complaint, as CEI is not a registered company, having a legal
entity. The appellants further relied on Naresh Kumar Madan v. State of
M.P., (2007) 4 SCC 766 wherein it has been held that an employee working in
the Electricity Board is covered under the definition of ‘Public Servant’
and State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 2 SCC 567 for
the proposition that the absence of sanction order from the appropriate
authority under Section 197 Cr.P.C for prosecuting a public servant,
vitiates the proceedings.
5. The respondent refuted the aforesaid submissions by arguing that the
appellants herein had deliberately conspired and had committed the offences
against the complainant and therefore he has a right to lodge a complaint
for the offences committed by the appellants along with accused No. 2
(Chief Engineer, JSEB) in rejecting the tender submitted by the complainant
with a view to accept the tender of the 1st accused. It was argued that
they conspired and created false document with an idea of rejecting the
claim of the complainant. The respondent further submitted that
complainant's locus standi as a company was not questioned in the earlier
proceedings before the Chhattisgarh High Court and that the Judicial
Magistrate had applied his mind and after satisfying himself that the
complainant/respondent has got legal status to lodge the said complaint,
had taken cognizance of the offences committed by the accused persons. It
was also contended that the question of obtaining sanction under Section
197 Cr.P.C. will not arise in so far as the present complaint is concerned,
as the accused are charged for conspiracy, cheating, criminal breach of
trust and defamation. He further submitted that his allegation in the
complaint pertained to the fabrication of the Certificate-cum-Report dated
28.12.2004 which was used against him in rejecting his tender and 1st
accused was favoured with the award of work. Therefore, they had committed
offences against the complainant and damaged the reputation of the
respondent/ complainant.
6. The High Court while dismissing the petition of the appellants
recorded that:
(a) As far as mandatory provisions of Section 197 Cr.P.C is concerned,
the High Court accepted that the appellants are ‘Public Servants’. It also
observed that if the accusation against the appellants under Sections 120-
B, 468, 420 & 500 IPC are connected with the discharge of their duty viz.
if the said acts had reasonable connection with discharge of his duty then
applicability of Section 197 cannot be disputed. However, on going through
the allegations in the complaint, the High Court held that even though the
appellants are “Public Servant’, the alleged offences committed by them are
cognizable offences are not in discharge of their normal duties, in which
component of criminal breach of trust is found as one of the elements and
hence the provisions of Section 197 Cr.P.C. are not attracted.
(b) It has also been observed that the evidence regarding the allegations
made in the complaint have to be recorded and gone into by the trial court
after the evidence have been adduced by the complainant. It is only
thereafter the lower Court, can decide as to whether the allegations about
the falsity of the Certificate with conspiracy of accused No. 2 and the
appellants herein are correct or not.
7. It is clear from the above that primarily two questions arise for
consideration namely:
(a) Whether prior sanction of the competent authority to prosecute the
appellants, who are admittedly public servants, is mandatory under Section
197 of the Code?
(b) Whether, on the facts of this case, the complaint filed by the
respondent is motivated and afterthought, after losing the battle in civil
litigation and amounts to misuse and abuse of law?
We would like to remark that having regard to the facts of
this case the two issues are interconnected and narratives would be
overlapping, as would become apparent when we proceed with the discussion
hereinafter.
8. For this purpose, we would first like to point out that the High
Court has itself taken note of the judgment of this Court in the Case of
Naresh Kumar Madan (supra) to hold that the appellants are covered by the
description of public servants within the meaning of Section 21 of IPC.
Following observations therefrom have been quoted:
“The officers of the State Electricity Board are required to carry out
public functions. They are public authorities. Their action in one way or
the other may entail civil or evil consequences to the consumers of
electrical energy. They may prosecute a person. They are empowered to
enter into the house of the Board's consumers. It is only for proper and
effective exercise of those powers, the statute provides that they would be
public servants, wherefore a legal fiction has been created in favour of
those employees, when acting or purported to act in pursuance of any of the
provisions of the Act within the meaning of Section 21 of the Indian Penal
Code. Indian Penal Code denotes various persons to the public servants.
It is, however, not exhaustive. A person may be public servant in terms of
another statute. However we may notice that a person, who, inter alia, is
in the service or pay of the Government established by or under a Central,
Provincial or State Act, would also come within the purview thereof.
Section 2 (1) (c) of the 1988 Act also brings within its embrace a person
in the service or pay of a corporation established by or under a Central
Act.”
9. The question is of the applicability of Section 197 of the Code.
Said provision with which we are concerned is reproduced below:
“Prosecution of Judges and public servant. (1) When any person who is or
was a Judge or Magistrate or a public servant not removable from his office
save by or with the sanction of the Government is accused of any ofence
alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take cognizance of such
offence except with the previous sanction-
(a) In the case of a person who is employed, or as the case may be, was at
the time of commission of the alleged offence employed, in connection with
the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at
the time of commission of the alleged offence employed, in connection with
the affairs of a State, of the State Government.”
10. This provision makes it clear that if any offence is alleged to have
been committed by a public servant who cannot be removed from the office
except by or with the sanction of the Government, the Court is precluded
from taking cognizance of such offence except with the previous sanction of
the competent authority specified in this provision.
11. The sanction, however, is necessary if the offence alleged against
public servant is committed by him “while acting or purporting to act in
the discharge of his official duties”. In order to find out as to whether
the alleged offence is committed while acting or purporting to act in the
discharge of his official duty, following yardstick is provided by this
Court in Dr. Budhikota Subbarao (supra) in the following words:
“If on facts, therefore, it is prima facie found that the act or omission
for which the accused was charged had reasonable connection with discharge
of his duty then it must be held to be official to which applicability of
Section 197 of the Code cannot be disputed.”
12. This principle was explained in some more detail in the case of
Raghunath Anant Govilkar v. State of Maharashtra, which was decided by this
Court on 08.02.2008 in SLP (Crl.) No.5453 of 2007, in the following manner:
“On the question of the applicability of Section 197 of the Code of
Criminal Procedure, the principle laid down in two cases, namely,
Shreekantiah Ramayya Munipalli v. State of Bombay and Amrik Singh v. State
of Pepsu was as follows:
It is not every offence committed, by a public servant that requires
sanction for prosecution under Section 197 (1) of Criminal Procedure Cod;
nor even every act done by him while he is actually engaged in the
performance of his official duties; but if the act complained of is
directly concerned with his official duties so that, if questioned, it
could be claimed to have been done by virtue of the office, then sanction
would be necessary.
The real question therefore, is whether the acts complained of in the
present case were directly concerned with the official duties of the three
public servants. As far as the offence of criminal conspiracy punishable
under Sections 120-B read with Section 409 of the Indian Penal Code is
concerned and also Section 5(2) of the Prevention of Corruption Act, are
concerned they cannot be said to be of the nature mentioned in Section 197
of the Code of Criminal Procedure. To put it shortly, it is no part of the
duty of a public servant, while discharging his official duties, to enter
into a criminal conspiracy or to indulge in criminal misconduct. Want of
sanction under Section 197 of the Code of Criminal Procedure is, therefore,
no bar.”
13. Likewise, in Shambhoo Nath Misra v. State of U.P. and others, (1997)
5 SCC 326, the Court dealt with the subject in the following manner:
“5. The question is when the public servant is alleged to have committed
the offence of fabrication of record or misappropriation of public fund
etc. can be said to have acted in discharge of his official duties? It is
not the official duty of the public servant to fabricate the false record
and misappropriate the public funds etc. in furtherance of or in the
discharge of his official duties. The official capacity only enables him
to fabricate the record or misappropriate the public fund etc. It does not
mean that it is integrally connected or inseparably interlinked with the
crime committed in the course of same transaction, as was believed by the
learned Judge. Under these circumstances, we are of the opinion that the
view expressed by the High Court as well as by the trial Court on the
question of sanction is clearly illegal and cannot be sustained.”
14. The ratio of the aforesaid cases, which is clearly discernible, is
that even while discharging his official duties, if a public servant enters
into a criminal conspiracy or indulges in criminal misconduct, such
misdemeanor on his part is not to be treated as an act in discharge of his
official duties and, therefore, provisions of Section 197 of the Code will
not be attracted. In fact, the High Court has dismissed the petitions
filed by the appellant precisely with these observations namely the
allegations pertain to fabricating the false records which cannot be
treated as part of the appellants normal official duties. The High Court
has, thus, correctly spelt out the proposition of law. The only question
is as to whether on the facts of the present case, the same has been
correctly applied. If one looks into the allegations made in the complaint
as stand alone allegations, probably what the High Court has said may seem
to be justified. However, a little deeper scrutiny into the circumstances
under which the complaint came to be filed would demonstrate that
allegation of fabricating the false record is clearly an afterthought and
it becomes more than apparent that the respondent has chosen to level such
a make belief allegation with sole motive to give a shape of criminality to
the entire dispute, which was otherwise civil in nature. As noted above,
the respondent had in fact initiated civil action in the form of suit for
injunction against the award of the contract in which he failed. Order of
civil court was challenged by filing writ petition in the High Court. Plea
of the respondent was that the action of the Department in rejecting his
tender and awarding the contract to accused No.1 was illegal and motivated.
Writ petition was also dismissed with cost. These orders attained
finality. It is only thereafter criminal complaint is filed with the
allegation that accused No.1 is favoured by creating a false certificate
dated 28.12.2004. We would dilate this discussion with some elaboration,
hereinafter.
15. As already pointed above, tender was floated by the CSEB and the CEI
herein was one of the parties who had submitted its bid through the
respondent. However, tender conditions mentioned certain conditions and it
was necessary to fulfill those conditions to become eligible to submit the
bid and have it considered. As per the appellants, tender of the
respondent was rejected on the ground that plant and equipment erected by
the respondent at Patratu Thermal Power Station, Patratu, Jharkhand was not
functioning well. This information was received by the Tender Committee
from JSEB. When the report was sought by CSEB in December, 2004, the
Tender Committee took the view that the respondent did not fulfill the pre-
qualifying conditions and rejected his tender. Before doing so, the
respondent was asked time and again to send the performance report which he
had promised but he failed to comply even when he had assured to do the
needful. In fact, that itself was sufficient to reject that bid of the
respondent as it was non compliant with the tender conditions. Still, in
order to verify the claim of the respondent and to consider his bid on
merits, though not strictly required, the appellant R.C. Jain was deputed
to get the desired information from JSEB. He met the officials of JSEB
and submitted his report to the effect that the works carried out by the
respondent at Patratu Thermal Power Station was not satisfactory. Even,
Shri B.M. Ram, General Manager of the said Power Station furnished his
report dated 28.12.2004 wherein it was summed up that due to the defects in
the scanning system, supplied by the respondent, generation had been
adversely effected and the said Electricity Board was not satisfied with
the equipment supplied by the respondent. In spite of the aforesaid
material, the tender Committee acted with caution and even the technical
expertise was sought. Even the report of the technical experts went
against the respondent as it opined that the respondent was not technically
suitable on the technical vetting and comparative data. On the basis of
the aforesaid material, the respondent's tender document was not opened and
returned and he was informed accordingly. All this has clearly happened in
furtherance of and in discharge of the official duties by the appellant.
In the facts of the present case, we are of the view that allegations of
fabricating the records are mischievously made as an afterthought, just to
give colour of criminality to a civil case.
16. As pointed out above, the respondent had even filed the civil suit
challenging the decision of the Electricity Board in returning his tender
documents on the ground that the same were not as per pre-qualifying
conditions of the tender. He had thus resorted to the civil remedy.
However, he failed therein as for the reasons best known to him, he sought
to withdrew the same and accordingly the same was dismissed for non-
prosecution. It is trite that once the suit is withdrawn, that acts as
constructive res judicata having regard to the provision of Order XXIII
Rule 1 of the Code of Civil Procedure. Also, when suit is dismissed under
Order IX Rule 8 CPC, fresh suit under Order IX Rule 9 is barred. The legal
implication would be of that the attempt of the respondent in challenging
the decision of the Tender Committee in not considering his tender remained
unfaulted. Even when the respondent himself invited order of dismissal in
the civil suit, curiously enough, he filed a writ petition against the
order passed in the civil court dismissing his suit for non-prosecution,
but the same was also dismissed by the High Court on 25.06.2007 and even a
cost of Rs.25,000/- was imposed on the respondent as the said writ petition
was perceived by the High Court as 'abuse of process of the court'. SLP
preferred by the respondent was also dismissed by this Court on 14.09.2007.
It is only thereafter the respondent filed the criminal complaint out of
which present proceedings emanate. No doubt, the respondent in his
complaint has right to colour his complaint by levelling the allegations
that the appellants herein fabricated the records. However, on the facts
of this case, it becomes difficult to eschew this allegation of the
respondent and we get an uncanny feeling that the contents of FIR with
these allegations are a postscript of the respondent after losing the
battle in civil proceedings which were taken out by him challenging the
action of the Department in rejecting his tender. When he did not succeed
in the said attempt, he came out with the allegations of forgery. It is
thus becomes clear that the action of the respondent in filing the criminal
complaint is not bonafide and amounts to misuse and abuse of the process of
law.
17. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court
has laid down principles on which Court can quash the criminal proceedings
under Section 482 of Cr.P.C. These are as follows:
“102.(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 Act concerned (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
Act concerned, 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.”
Principle Nos.6 and 7 are clearly applicable in the present
case.
18. Having regard to the circumstances narrated and explained above, we
are also of the view that attempt is made by the respondent to convert a
case with civil nature into criminal prosecution. In a case like this,
High Court would have been justified in quashing the proceedings in
exercise of its inherent powers under Section 482 of the Code. It would be
of benefit to refer to the judgment in the case of Indian Oil Corpn. v.
NEPC India Ltd. and others, (2006) 6 SCC 736, wherein the Court adversely
commented upon this very tendency of filing criminal complaints even in
cases relating to commercial transaction for which civil remedy is
available is available or has been availed. The Court held that the
following observations of the Court in this behalf are taken note of:
“13. While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately protect the interests
of lenders/creditors. Such a tendency is seen in several family disputes
also, leading to irretrievable breakdown of marriages/families. There is
also an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri v. State of U.P., (2000) 2
SCC 636, this Court observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are not a
short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles on the basis
of which the High Court is to exercise its jurisdiction under Section 482
of the Code. Jurisdiction under this section has to be exercised to
prevent abuse of the process of any court or otherwise to secure the ends
of justice.”
14. While no one with a legitimate cause or grievance should be prevented
from seeking remedies available in criminal law, a complainant who
initiates or persists with a prosecution, being fully aware that the
criminal proceedings are unwarranted and his remedy lies only in civil law,
should himself be made accountable, at the end of such misconceived
criminal proceedings, in accordance with law. One positive step that can
be taken by the courts, to curb unnecessary prosecutions and harassment of
innocent parties, is to exercise their power under Section 250 CrPC more
frequently, where they discern malice or frivolousness or ulterior motives
on the part of the complainant. Be that as it may.”
19. In Inder Mohan Goswami and another v. State of Uttaranchal and
others, (2007) 12 SCC 1, the Court reiterated the scope and ambit of power
of the High Court under Section 482 of the Code in the following words:
“23. This Court in a number of cases has laid down the scope and ambit of
courts' powers under Section 482 CrPC. Every High Court has inherent power
to act ex debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse of the process
of the court. Inherent power under Section 482 CrPC can be exercised:
(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.
24. Inherent powers under Section 482 CrPC 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 could would be justified in preventing injustice by
invoking inherent powers in absence of specific provisions in the statute.
Discussion of decided cases
25. 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. DPP, 1 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 DPP 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 jealously preserved.
46. The court must ensure that criminal prosecution is not used as an
instrument of harassment or for seeking private vendetta or with an
ulterior motive to pressurise the accused. On analysis of the
aforementioned cases, we are of the opinion that it is neither possible nor
desirable to lay down an inflexible rule that would govern the exercise of
inherent jurisdiction. Inherent jurisdiction of the High Courts under
Section 482 CrPC though wide has to be exercised sparingly, carefully and
with caution and only when it is justified by the tests specifically laid
down in the statute itself and in the aforementioned cases. In view of the
settled legal position, the impugned judgment cannot be sustained.”
20. As a result, these appeals are allowed. Order of the High Court is
set aside. Consequently, cognizance taken by the learned Magistrate and
orders summoning the appellants as accused is hereby set aside resulting
into the dismissal of the said complaint. There shall however be no order
as to costs.
…......................................J.
(J. Chelameswar)
…......................................J.
(A.K. Sikri)
New Delhi;
October 14, 2014.
