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Friday, February 13, 2015

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 otherwise 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.=The facts in the case of Thermax Ltd. (supra) were quite different and there was a clear situation showing that the complainant was trying to circumvent period of limitation for moving the Civil Court, by filing a delayed criminal case. On behalf of accused persons reliance has also been placed upon judgment in the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a complaint filed against the appellants who were bank officials was quashed because the Court found that it was a counter-blast to action taken by them in their official capacity for realizing the loan amount due from the complainant. On facts of that case, it was easy to hold that the complaint was clearly an abuse of judicial process and it was also found that averments and allegations in complaint did not disclose commission of any offence by appellants. The Magistrate had failed to apply his mind to the case of the appellants and the High Court had erred in not even adverting to the basic facts. The factual situation in the present case is quite otherwise. Reliance was also placed on behalf of respondents upon judgment in the case of State of Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for discharge before the Sessions Court which was not accepted but the High Court quashed the proceedings on the ground that there was no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts of that case showing lack of any data or material which could create a reasonable likelihood of conviction for any offence in connection with attempted murder of the complainant. That judgment also is of no help to the respondents herein in the light of allegations made in the complaint, the statement of the complainant on solemn affirmation and the CID Report of investigation on which the complainant placed reliance and which was perused by the learned Magistrate. These appeals are therefore allowed, the judgment and order under appeal passed by the High Court is set aside. We also set aside the orders passed by the learned Sessions Court dated 30.11.2011 whereby summoning order was set aside in respect of accused nos.6 to 8 and accused no.9. In other words, the order of summoning passed by learned Magistrate dated 02.05.2011 is restored.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 285-287 OF 2015
              [Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]

Sonu Gupta                                         .....Appellant

      Versus

Deepak Gupta & Ors.                                   .....Respondents



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

Leave granted.
The parties have been heard in detail  and  they  have  also  filed  written
submissions.  Appellant is wife of respondent no.1  and  is  complainant  in
Criminal Complaint No.1213/2011 before Court of Judicial  Magistrate,  First
Class, Raipur.  The respondents are accused in  this  Complaint  Case  which
was filed on 07.12.2010 for alleged offences under Section 464, 468 and  471
of the Indian Penal Code (IPC).
The appellant and respondent no.1 are undergoing  a  protracted  matrimonial
dispute.  It is the case of appellant as well as respondent no.1  that  they
were married in February 1997.  A girl child was born to  the  appellant  in
May 1998 and in 2001 the appellant gave informations  on  various  dates  to
several  police  authorities  regarding  alleged  torture   and   harassment
inflicted on her by respondent nos.1 to 8 for dowry as well  as  for  giving
birth to a girl child.  It is appellant's case that  in  April  2001  itself
there was pressure by the common relatives and friends leading to  appellant
withdrawing her allegations against respondent no.1  who  in  turn  withdrew
Divorce Petition No.496/2000 and the same  was  dismissed  as  withdrawn  by
order of Additional District  Judge,  Delhi  dated  30th  April  2001.   The
differences between the spouses got  settled  amicably  in  April-May  2001.
The appellant gave birth to another girl child in August 2002  much  to  the
dislike of accused persons.
The substance of the accusation  in  the  instant  complaint  case  is  that
anticipating legal action by the appellant against  renewed  mental  torture
and harassment by the respondent no.1  and  his  other  relations  named  as
accused, as a stratagem and outcome of a  conspiracy,  one  of  her  earlier
letters of complaint to some police officials which had  been  withdrawn  by
the  appellant  in  April-May  2001,  was  changed  and  tampered   as   per
convenience and a photocopy of such undated  complaint  making  out  a  weak
case against the respondents which was bound to fail, was got registered  at
the instance of the accused persons themselves with the help of some  police
officials as Criminal Case (FIR No.73/2002)  on  06.10.2002  in  the  Mahila
Thana, Raipur by the Town Inspector of this Thana under pressure of  accused
no.9, Additional Director General of Police, PHQ, Raipur.  According to  the
complaint petition, the appellant informed the concerned court that the  FIR
No.73/2002 was neither  filed  by  her  nor  signed  by  her  and  this  FIR
facilitated her husband  and  his  relations  who  were  accused  to  obtain
anticipatory bail not only in FIR No.73/2002 but also in the case  genuinely
filed by the appellant against accused nos.1 to 8 under  Sections  498A  and
406, IPC in  Women's  Cell,  Kirti  Nagar,  Delhi  registered  as  Complaint
No.372/2004 on 15.06.2004.  The appellant was also surprised to  receive  in
July 2003 a notice of Divorce Petition filed by respondent no.1 in  a  Delhi
court on 19.5.2003.  The appellant approached various authorities and  tried
to get an  investigation  into  her  allegations  that  FIR  No.73/2002  was
fraudulently registered to benefit the accused nos.1 to 8 and the  appellant
had  no  role  in  registering  the  same.  Ultimately,  even  after  a  CID
investigation in favour of  appellant's  case,  when  no  action  was  taken
against the culprits and no copy of the CID report  was  made  available  to
the appellant, she filed a Writ Petition No.1488/2005 before the High  Court
of Chhattisgarh at Bilaspur seeking the record of  investigation  report  of
CID and registration of a criminal case  against  the  accused  as  well  as
investigation by CBI.  In terms of  directions  of  the  High  Court  issued
while disposing of the  writ  petition  on  24.06.2010,  the  appellant  was
provided with copy of the CID investigation report and  was  also  permitted
to inspect the entire connected record.   Thereafter  appellant  could  find
that the Station House Officer of Mahila Thana, Raipur as  well  as  accused
no.9, Additional Director General of Police, PHQ, Raipur also had  played  a
role in fraudulent registration of FIR No.73/2002 and hence  she  filed  the
instant criminal complaint before the Court of  Judicial  Magistrate,  First
Class, Raipur on 07.12.2010.
The learned Judicial Magistrate recorded the statement of the appellant  and
also called for record of CID investigation in the matter of FIR  No.73/2002
for the purpose of perusal and evaluation.  On receipt of  the  record,  the
learned Judicial Magistrate passed a speaking order  on  02.05.2011  whereby
he issued summons against accused nos.1 to 9 after  finding  a  prima  facie
case  on  the  basis  of  complaint  petition,  statement   of   complainant
(appellant)  as  well  as  records  of  CID  investigation  on   which   the
complainant had placed reliance.  Accused nos.1 to 8 preferred  one  set  of
criminal revision and  accused  no.9  preferred  another  criminal  revision
before the Sessions Court at Raipur.  By two separate orders passed on  same
date, i.e., 30.11.2011, the Sessions Court upheld  the  summoning  order  in
respect of accused nos.1 to 5 but set it aside in respect of  accused  nos.6
to 8 and accused no.9.  Against these two  orders  the  appellant  preferred
criminal revision petitions whereas accused nos.1  to  5  also  preferred  a
Criminal Miscellaneous Petition bearing No.45/2012 before  the  High  Court.
The High Court, by common judgment  and  order  dated  07.09.2012  which  is
under appeal, dismissed both the criminal revision  petitions  preferred  by
the appellant against grant of relief to accused  nos.6  to  9  and  allowed
criminal miscellaneous petition of accused nos.1 to 5 by setting  aside  the
summoning order of the Magistrate and  directing  the  appellant  to  appear
before the Court of Judicial Magistrate for adducing  further  evidence,  if
any, to support her allegation in the complaint  petition.  The  High  Court
thus remitted back  the  matter  with  various  observations  requiring  the
appellant to produce alleged documents which could prove  forgery  and  also
to send the same to expert for examination of the document and signature  of
the complainant/appellant.
Considering the stage at which the criminal complaint  is  pending  and  the
nature of proposed order, this Court would not like to express any  definite
opinion on the merits of the allegations made in the complaint  petition  or
upon the defence taken by the accused persons before the courts below or  in
this Court lest it prejudices one or the other party in future.
Having  considered  the  details  of  allegations  made  in  the   complaint
petition, the statement of the complainant on solemn affirmation as well  as
materials on which the appellant placed reliance which were  called  for  by
the learned Magistrate, the learned Magistrate, in our  considered  opinion,
committed no error in summoning  the  accused  persons.   At  the  stage  of
cognizance and summoning the Magistrate is required to  apply  his  judicial
mind only with a view to take  cognizance  of  the  offence,  or,  in  other
words, to find out whether prima facie case has been made out for  summoning
the accused persons.  At this stage, the learned Magistrate is not  required
to consider the  defence  version  or  materials  or  arguments  nor  he  is
required to evaluate  the  merits  of  the  materials  or  evidence  of  the
complainant, because the Magistrate must not undertake the exercise to  find
out at this stage whether the materials will lead to conviction or not.
It is also well settled that cognizance is taken of the offence and not  the
offender.  Hence at the stage of framing of  charge  an  individual  accused
may seek discharge if he or she can show that the materials  are  absolutely
insufficient for framing of charge against  that  particular  accused.   But
such exercise is required only at a later stage, as indicated above and  not
at the stage of taking cognizance and summoning the accused on the basis  of
prima facie case.  Even at the stage of framing of charge,  the  sufficiency
of materials for the purpose of conviction is  not  the  requirement  and  a
prayer for discharge can be  allowed  only  if  the  court  finds  that  the
materials are wholly insufficient for the purpose of trial.  It  is  also  a
settled proposition of law  that  even  when  there  are  materials  raising
strong suspicion  against  an  accused,  the  court  will  be  justified  in
rejecting a prayer for discharge and  in  granting  an  opportunity  to  the
prosecution to bring on record the entire evidence in  accordance  with  law
so  that  case  of  both  the  sides  may  be  considered  appropriately  on
conclusion of trial.
Learned senior advocate for the appellant Mr. Aman Lekhi has relied  upon  a
catena of judgments such as :-
      Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];
State of Orissa & Anr. vs. Saroj Kumar Sahoo  [(2005) 13 SCC 540];

Riyasat Ali vs. State of U.P.  [1992 Crl.L.J. 1217];
Nupur Talwar vs. Central Bureau of  Investigation  &  Anr.  [(2012)  11  SCC
465];

Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC 460];

Asmathunnisa vs. State of Andhra Pradesh & Anr. [(2011) 11 SCC 259];

MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E. Ltd. & Ors.  [(2000)  3
SCC 269];

State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6 SCC 372];

B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];
Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];
P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].

These need no discussion because  settled  propositions  of  law  reiterated
therein have already been noticed earlier.
In the present case, on going through the order of the  learned  Magistrate,
we are satisfied that the same suffers from  no  illegality.   The  specific
case of the appellant that FIR was registered on an undated photocopy  of  a
petition attributed to the appellant but not bearing her original  signature
could not have been rejected by the learned Magistrate at the present  stage
especially in view of the report of investigation by the CID which was  also
called  for  and  there  being  no  dispute  that  the  FIR  No.73/2002  was
registered only on the basis of a photocopy on which the  signature  is  not
in original and hence in our considered view the Hon'ble High Court  grossly
erred   in   exercise    of    its    jurisdiction    by    directing    the
appellant/complainant to lead further  evidence  and  produce  the  original
documents to show forgery.  If the FIR is admittedly on the basis of only  a
photocopy of a document allegedly brought  into  existence  by  the  accused
persons, the High Court erred in directing  the  appellant  to  produce  the
original and get the signatures compared.
In our considered view, the High Court fell into  error  of  evaluating  the
merits of the defence case and other submissions advanced on behalf  of  the
accused which were not appropriate for consideration at the stage of  taking
cognizance and issuing summons.
Learned advocate for the accused persons,  Mr.  D.N.  Goburdhan  has  placed
reliance upon judgment in the case of Pepsi Foods Ltd.  &  Anr.  v.  Special
Judicial Magistrate & Ors. (1998) 5 SCC 749 to highlight that  summoning  of
an accused is a serious matter and, therefore, the order of  the  Magistrate
must reflect that he has applied his mind to the facts of the case  and  the
relevant law, as highlighted in paragraph 28 of the Report.   In  that  case
emphasis was laid upon power available with  the  High  Court  either  under
Articles 226 and 227 of  the  Constitution  or  under  Section  482  of  the
Cr.P.C. to quash a criminal proceeding even at initial stage to prevent  the
abuse of process of law by the inferior courts.  But  this  Court  cautioned
that  since  the  powers  conferred  on  the  High  Court  under   aforesaid
provisions have no limits, hence  more/due  care  and  caution  is  required
while invoking these powers.  In paragraph 29 it  was  emphasized  that  the
accused can approach the High Court "to have the proceeding quashed  against
him when the complaint does not make out any case against him".   The  facts
in the present case are otherwise and required the High  Court  to  exercise
more caution in view of clear allegations in the  complaint  petition.   The
High Court erred in evaluating the merit of evidence for interfering with  a
summoning order.  Learned counsel also placed  reliance  upon  judgments  in
the case of  State of Haryana & Ors. v. Bhajan Lal &  Ors.  1992  Supp.  (1)
SCC 335 and also in the case of Thermax Ltd. & Ors. v.  K.M.  Johny  &  Ors.
(2011) 13 SCC 412  in  support  of  the  proposition  that  power  to  quash
criminal prosecution is justified where a criminal proceeding is  instituted
with malafide or ulterior motives.  In the case of Bhajan Lal  (supra)  this
Court did indicate in para  102,  seven  kinds  of  cases  where  court  may
exercise power to quash criminal prosecution  but  in  respect  of  the  7th
category relating to malafide, this Court used the expression -  "manifestly
attended with malafide" and further explained  in  paragraphs  103  and  104
that the power of quashing should  be  exercised  very  sparingly  and  with
circumspection and that too in the rarest of  rare  cases.   Paragraphs  103
and 104 are reproduced hereunder :

"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  otherwise  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.

104. It may be true, as repeatedly pointed out by Mr. Parasaran, that  in  a
given situation, false and vexatious charges of corruption and venality  may
be maliciously attributed against any  person  holding  a  high  office  and
enjoying a respectable status thereby sullying his character,  injuring  his
reputation and exposing him to social ridicule with a view to spite  him  on
account of some personal rancour, predilections and past prejudices  of  the
complainant.  In such a piquant situation, the question  is  what  would  be
the remedy that would redress the grievance of the  verily  affected  party?
The answer would be  that  the  person  who  dishonestly  makes  such  false
allegations is liable to be proceeded against under the relevant  provisions
of the Indian Penal Code - namely under Section 182 or 211  or  500  besides
becoming liable to be sued for damages."


The facts in the case of Thermax  Ltd.  (supra)  were  quite  different  and
there was a clear situation showing  that  the  complainant  was  trying  to
circumvent period of limitation for moving the  Civil  Court,  by  filing  a
delayed criminal case.
On behalf of accused persons reliance has also been placed upon judgment  in
the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav &  Anr.  (2009)  9  SCC
682.  In that case a complaint filed against the appellants  who  were  bank
officials was quashed because the Court found that it  was  a  counter-blast
to action taken by them in their official capacity for  realizing  the  loan
amount due from the complainant.  On facts of that  case,  it  was  easy  to
hold that the complaint was clearly an abuse of judicial process and it  was
also found that averments and allegations  in  complaint  did  not  disclose
commission of any offence by  appellants.   The  Magistrate  had  failed  to
apply his mind to the case of the appellants and the High  Court  had  erred
in not even adverting to the basic facts.   The  factual  situation  in  the
present case is quite otherwise.  Reliance was  also  placed  on  behalf  of
respondents upon judgment in the case of State of Karnataka v.  Muniswamy  &
Ors. (1977) 2 SCC 699.  In  that  case,  the  accused  persons  pleaded  for
discharge before the Sessions Court which was  not  accepted  but  the  High
Court quashed the proceedings on the ground that there was  no  material  on
the record on the basis of which any tribunal could reasonably come  to  the
conclusion that the accused were in any manner connected with  the  incident
leading to the prosecution.  This Court agreed with the views  of  the  High
Court on the basis of peculiar facts of that case showing lack of  any  data
or material which could create a reasonable  likelihood  of  conviction  for
any offence in connection with attempted murder of  the  complainant.   That
judgment also is of no help to  the  respondents  herein  in  the  light  of
allegations made in the complaint,  the  statement  of  the  complainant  on
solemn affirmation  and  the  CID  Report  of  investigation  on  which  the
complainant  placed  reliance  and  which  was  perused   by   the   learned
Magistrate.
These appeals are therefore allowed, the judgment  and  order  under  appeal
passed by the High Court is set aside.  We also set aside the orders  passed
by the learned Sessions Court dated 30.11.2011 whereby summoning  order  was
set aside in respect of accused nos.6 to  8  and  accused  no.9.   In  other
words, the order of summoning passed by learned Magistrate dated  02.05.2011
is restored.  Before parting with the  order  we  make  it  clear  that  any
observations in this order shall not prejudice the case  of  either  of  the
parties before the court below  and  the  criminal  complaint  case  of  the
appellant must proceed on its own merits strictly in accordance with law.
Although we have set aside the order granting relief to accused nos.6  to  9
by the Sessions Court, in the interest of justice, we  direct  that  in  the
facts of the case accused nos.6 to 9 shall be granted  benefit  of  bail  by
the learned Magistrate if they appear within 10 weeks and  apply  for  same.
The Magistrate shall of course be at liberty to  set  reasonable  conditions
for such grant.



..................................J.
                             [ANIL R. DAVE ]


..................................J.
[KURIAN JOSEPH]



..................................J.
                                  [SHIVA KIRTI SINGH]
New Delhi.
February 11, 2015.
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