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Friday, April 15, 2016

Quashing of prosecution - we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” = we are of the view that the High Court has exceeded its jurisdiction under Section 482 of the CrPC. It has erred in quashing the cognizance order passed by the learned CJM without appreciating the material placed before it in correct perspective. The High Court has ignored certain important facts, namely, that on 17.10.2008, the appellant no.1 was allegedly threatened by the accused-Mukhtar for which FIR No. 104/08 was registered against him for offences punishable under Sections 25 and 26 of the Arms Act, 1959. Further, there are statements of various witnesses made under Section 164 of the CrPC, before a judicial magistrate, to the effect that the deceased has been murdered by none other than her husband-Mukhtar. The evidence collected by the I.O. by recording the statement of prosecution witnesses, filed alongwith the chargesheet was duly considered by the learned CJM before taking cognizance and therefore, the same should not have been interfered with by the High Court in exercise of its inherent power under Section 482 of the CrPC.

                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 299 OF 2016
                 (Arising out of SLP (Crl.) No.2866 of 2011)



AMANULLAH AND ANR.                ………APPELLANTS

                                     Vs.

STATE OF BIHAR AND ORS.           ……RESPONDENTS


                               J U D G M E N T

V.GOPALA GOWDA, J.
Leave granted.
This criminal appeal by special  leave  is  directed  against  the  impugned
judgment and order dated 08.12.2010 in Crl. Misc. No. 5777  of  2009  passed
by the High Court of  Judicature  at  Patna  whereby  it  allowed  the  said
criminal miscellaneous petition filed by the respondent nos.2 to  9  herein,
by setting aside  the  cognizance  order  dated  10.11.2008  passed  by  the
learned Addl. Chief Judicial Magistrate, Rosera,  Bihar  in  Singhia  Police
Case No.37/2008 and quashed the criminal prosecution.



Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:



The case of the prosecution is that  on  29.03.2008,  the  informant-Mukhtar
went to the house of his relative at village-Navdega and  stayed  there.  On
30.03.2008, at about 12.00  noon,  his  uncle  Md.  Hasim  informed  him  on
telephone that his wife’s condition was serious and she was being  taken  to
Singhia for treatment. Mukhtar was asked to reach Singhia. It is alleged  by
the informant that on reaching Singhia, he neither found his  wife  nor  his
uncle. On enquiry from his uncle, he was informed about  the  death  of  his
wife. Thereafter, he reached his house and saw the dead body  of  his  wife.
His uncle disclosed him that his wife-Tamanna Khatoon (since  deceased)  had
gone to maize field wherein she was found lying  with  her  mouth  and  nose
tied with her dupatta. She was spotted by one  Hira  Sada  (PW-2),  who  was
returning with her daughter. Upon hearing the noise  made  by  the  deceased
she raised alarm and upon  hearing  the  same  informant’s  uncle-Md.  Hasim
along with others reached the spot and took Tamanna Khatoon to  Singhia  for
treatment. She died on the way to Singhia. On 30.03.2008 FIR was  lodged  by
Mukhtar, husband of the deceased against Md. Raju and Md.  Halim  @  Mangnu-
appellant no.2 herein for the offences punishable  under  Sections  302  and
120B read with Section 34 of the Indian Penal Code (for short “IPC”).



During  investigation,  many   witnesses   deposed   before   the   Judicial
Magistrate, Rosera under Section  164  of  the  CrPC  wherein  it  has  been
alleged that Mukhtar, husband of the deceased has killed his wife.



On 30.09.2008 charge sheet no.111/2008 in respect of  FIR  No.  37/2008  was
filed in the Court of Chief Judicial Magistrate (CJM), Rosera by the  police
against Md. Hasim, Md. Noor Hasan, Md. Safique and Jhothi Sada.



After  filing  of  the  charge  sheet,  Mukhtar  started   threatening   the
witnesses. With a view to threaten the  appellant  no.1  on  17.10.2008,  he
reached his house with pistol and dagger. The appellant no.1 raised hue  and
cry and upon hearing the same, co-villagers caught Mukhtar with arms,  after
a chase.  FIR  No.  104/08  was  registered  against  him  for  the  offence
punishable under Sections 25 and 26 of the Arms Act, 1959 at Singhia  Police
Station.



On 31.10.2008, a supplementary charge sheet no.126/2008, in respect  of  FIR
No. 37/2008 was filed before the learned  CJM  by  the  police  against  Md.
Mukhtar @ Munna, Md. Nazre Alam and Md. Farukh.



The learned CJM after considering the material placed before him vide  order
dated 10.11.2008.took cognizance under  Sections  302  and  120B  read  with
Section 34 of the IPC against Mukhtar and other accused-persons.



Aggrieved by the cognizance order passed by the learned CJM in PS  Case  No.
37/2008, respondent nos. 2 to 9 approached the High Court of  Judicature  at
Patna by preferring Crl. Misc. No. 5777/2009 under Section 482 of Cr.PC  for
quashing the order of learned CJM dated 10.11.2008.



The High Court by its order dated 08.12.2010 allowed the  said  petition  by
setting aside the cognizance order  passed  by  the  learned  CJM  and  also
quashed  the  criminal  prosecution.  Aggrieved  by  the  said  order,   the
appellants herein, who are  interested  private  parties,  have  filed  this
appeal urging various grounds.



Mr. Neeraj Shekhar, the learned counsel for the  appellants  contended  that
the High Court has failed to appreciate that the FIR and  the  charge  sheet
establish a prima-facie case against the respondent nos. 2-9.  He  submitted
that when the allegations made against the  accused  person  show  a  prima-
facie case, criminal proceedings ought not to have been quashed by the  High
Court in exercise of its power under Section 482 of Cr.PC.



It was further contended that the High Court has erred in setting aside  the
cognizance order passed by the learned CJM as the extraordinary or  inherent
powers do not confer an arbitrary jurisdiction to act according to  whim  or
caprice.  He  further  submitted  that  the  power  of   quashing   criminal
proceedings is to be exercised sparingly and with  circumspection  and  that
too in rarest of rare cases.



It was further contended by the learned counsel that at the stage of  taking
cognizance of the offence it would not be proper, simply  on  the  basis  of
material placed before the  court  by  investigating  agency,  to  determine
whether a conviction is sustainable or not. The  High  Court  has  erred  in
appreciating the same  by  quashing  the  cognizance  order  passed  by  the
learned CJM. He further submitted that  the  inherent  power  to  quash  the
proceedings can be exercised only  in  a  case  where  the  material  placed
before the court does not disclose  any  offence  or  the  allegations  made
therein are found frivolous, vexatious or oppressive. At  this  stage  there
should not be any meticulous analysis of the  case,  before  the  trial,  to
find out whether the case would end in conviction or acquittal.



It was further contended that in the instant case the charge sheet  and  FIR
clearly establish the involvement and active participation of  the  accused-
persons which the High Court has failed to appreciate.



It was further submitted by the learned counsel  that  the  appellants  have
locus standi to maintain this appeal for  the  reason  that  the  appellants
have connection with matter at hand as appellant no.1 was threatened by  the
informant-Mukhtar  and  appellant  no.2  was  falsely  implicated   by   the
informant-Mukhtar in the case of murder of his  wife.  Both  the  appellants
are aggrieved by the impugned order passed by the High Court  setting  aside
the cognizance order passed by the Trial Court. In support of the  aforesaid
he placed reliance upon the Constitution Bench decision  of  this  Court  in
the case  of  P.S.R  Sadhanantham  v.  Arunanchalam[1].  He  further  placed
reliance upon the decisions of this Court in Ramakant Rai  v.  Madan  Rai  &
Ors[2], Esher Singh v. State of A.P.[3], Ramakant Verma v. State of  U.P.[4]
and Ashish Chadha v. Asha Kumari & Ors[5].



Per contra, Mr. Shivam Singh, the learned counsel  appearing  on  behalf  of
the respondents contended that  the  answering  respondents  have  not  been
named in the FIR. The FIR in this case is based on the statement of  Mukhtar
against two persons, namely Md. Raju and Md. Halim for  the  murder  of  his
wife and it was registered under Sections 302 and 120B read with Section  34
of the IPC. He further submitted that on 11.04.2008,  the  informant-Mukhtar
filed a protest petition  before  the  learned  CJM,  Rosera.  In  the  said
protest petition it was brought to the notice of the court  that  originally
he had given a written complaint to the police about the murder of his  wife
against five persons, namely Md. Raju, Md. Halim  @  Mangnu,  Khalid  Gulab,
Abu Quaiyum and Md. Amid Hussain for offences under Sections 376,  302  read
with Section 34 of the IPC. However, the local police in collusion with  the
accused-persons dropped the names of three accused persons and also  dropped
charge  under  Section  376  of  the  IPC   against   them   knowingly   and
intentionally. The course of investigation was diverted in  wrong  direction
to falsely implicate the respondent nos. 2-9.



 It was further contended by the learned counsel that the instant case is  a
unique case as the accused-persons are made prosecution witnesses and  apart
from them another set of tutored  witnesses  have  been  introduced  in  the
case, who  are  not  eye  witnesses  to  the  incident  and  have  in  their
deposition under Section 164 of the CrPC,  before  the  Judicial  Magistrate
deposed that the informant-husband might have  killed  his  wife.  The  High
Court has rightly taken a very serious view of the whole  matter  and  after
proper scrutiny of the documents and material placed on record has  come  to
an appropriate finding that the  case  against  the  respondent  nos.2-9  is
merely based  on  suspicion  and  therefore,  it  has  rightly  quashed  the
proceedings against them.



 He further submitted that after the incident Manjoor  Alam  father  of  the
deceased in his statement before the police did not  blame  Mukhtar  husband
of the deceased for the murder of his daughter. As far as other  respondents
are concerned, apart from the informant,  they  all  are  strangers  to  the
matter and have been falsely implicated in this case by the local police  at
the behest of the real accused persons.



 It was further submitted by the learned counsel that the father and  mother
of the deceased have given their statement  on  a  stamp  paper  before  the
Notary Public that their daughter was  having  a  cordial  matrimonial  life
with her husband and she was not  being  tortured  by  her  husband  or  his
family members in connection with any dowry demand.

By placing reliance upon the decision of this Court  in  J.K.  International
v. State (Govt. of Delhi) and Ors[6] and HDFC Bank Ltd.  &  Anr.  v.  Nagpur
District Security Guard Board & Anr.[7], it was  further  submitted  by  the
learned counsel that the appellants have failed to disclose  their  bonafide
connection with the cause of action, to  be  precise  with  the  victim  and
thus, have no locus standi to maintain this appeal. Therefore,  this  appeal
deserves to be dismissed on this score.



While concluding his contentions he submitted that the order passed  by  the
High Court is a well reasoned order and the same does not  suffer  from  any
ambiguity. The decision of the High Court is also justified in the light  of
decision of this Court in the case of State of  Haryana  v.  Bhajan  Lal[8].
Therefore, no interference of this Court is  required  in  exercise  of  its
appellate jurisdiction.



After considering the rival legal contentions urged on behalf  of  both  the
parties, following issues would arise for our consideration:



Whether this appeal is maintainable by the appellants on the ground  of  the
locus standi?



Whether the High Court, in the instant case, has exceeded  its  jurisdiction
while exercising its inherent power under Section 482 of the CrPC?



What order?

  Answer to Point No.1
The term ‘locus standi’ is a latin term, the general  meaning  of  which  is
‘place of standing’. The Concise Oxford English Dictionary,  10th  Edn.,  at
page 834, defines the term ‘locus standi’ as the right or capacity to  bring
an action or to appear in a court. The traditional view  of  ‘locus  standi’
has been that the person who is  aggrieved  or  affected  has  the  standing
before the court, i.e., to say he only has a right to  move  the  court  for
seeking justice. Later, this Court, with justice-oriented approach,  relaxed
the strict rule with regard to ‘locus standi’, allowing any person from  the
society not related to the cause of action to  approach  the  court  seeking
justice for those  who  could  not  approach  themselves.  Now  turning  our
attention towards the  criminal  trial,  which  is  conducted,  largely,  by
following the procedure laid down in the CrPC. Since, offence is  considered
to be a wrong committed against the society,  the  prosecution  against  the
accused person is launched by the State. It is the duty of the State to  get
the culprit booked for the offence committed by him. The focal point,  here,
is that if the State fails in this regard  and  the  party  having  bonafide
connection with the cause of action, who is aggrieved by the  order  of  the
court cannot be left at the mercy of the State and  without  any  option  to
approach the appellate court  for  seeking  justice.  In  this  regard,  the
Constitution Bench of this Court in the case of P.S.R.  Sadhanantham’s  case
(supra) has  elaborately  dealt  with  the  aforesaid  fact  situation.  The
relevant paras 13, 14 and 25 of which read thus:

“13. It is true that the strictest vigilance over abuse of  the  process  of
the court, especially at  the  expensively  exalted  level  of  the  Supreme
Court, should be maintained and ordinarily meddlesome bystanders should  not
be granted “visa”. It is also true that in the  criminal  jurisdiction  this
strictness applies a fortiori since an adverse verdict from this  Court  may
result in irretrievable injury to life or liberty.

14. Having said this, we must emphasise that we are  living  in  times  when
many societal pollutants create new problems of unredressed  grievance  when
the State becomes the sole repository for  initiation  of  criminal  action.
Sometimes, pachydermic indifference  of  bureaucratic  officials,  at  other
times politicisation of higher functionaries may result in refusal  to  take
a case to this Court under Article 136 even though the justice  of  the  lis
may well justify it. While “the criminal law should not be used as a  weapon
in personal vendettas between private individuals”, as Lord  Shawcross  once
wrote, in  the  absence  of  an  independent  prosecution  authority  easily
accessible  to  every  citizen,  a  wider  connotation  of  the   expression
“standing” is necessary for Article 136 to further its  mission.  There  are
jurisdictions in which private individuals — not the State alone  —  may  it
statute criminal proceedings. The Law Reforms Commission (Australia) in  its
Discussion Paper No. 4 on “Access to Courts — I  Standing:  Public  Interest
Suits” wrote:

“The general rule,  at  the  present  time,  is  that  anyone  may  commence
proceedings  and  prosecute  in  the  Magistrate  court.  The  argument  for
retention of that right arises at either end of the  spectrum  —  the  great
cases and the frequent petty cases.  The  great  cases  are  those  touching
Government itself — a Watergate or a Poulson. However independent  they  may
legally be any public official, police or  prosecuting  authority,  must  be
subject to some  government  supervision  and  be  dependent  on  Government
funds; its officers will inevitably have  personal  links  with  government.
They will be part of  the  ‘establishment’.  There  may  be  cases  where  a
decision not to prosecute a case  having  political  ramifications  will  be
seen,  rightly  or  wrongly,  as  politically   motivated.   Accepting   the
possibility of occasional abuse the Commission sees merit in retaining  some
right of a citizen to ventilate such a matter in the courts.”

Even the English System, as  pointed  by  the  Discussion  Paper  permits  a
private citizen to file an indictment. In our view the narrow limits set  in
vintage English Law, into the concept of  person  aggrieved  and  “standing”
needs liberalisation in our democratic situation.  In  Dabholkar  case  this
Court imparted such a wider meaning. The American Supreme Court relaxed  the
restrictive attitude towards “standing” in  the  famous  case  of  Baker  v.
Carr. Lord Denning, in the notable  case  of  the  Attorney-General  of  the
Gambia v. Pierra Sarr N’jie, spoke thus:

“... the words “person aggrieved” are of  wide  import  and  should  not  be
subjected to a restrictive interpretation. They do not include,  of  course,
a mere busybody who is interfering in things which do not concern him;”

Prof. S.A. de Smith takes the same view:

“All developed legal systems have had  to  face  the  problem  of  adjusting
conflicts between two aspects of the public interest — the  desirability  of
encouraging individual citizens to participate actively in  the  enforcement
of the law, and the undesirability of encouraging the professional  litigant
and the meddlesome interloper to invoke the jurisdiction of  the  courts  in
matters that do not concern him.”

Prof. H.W.R. Wade strikes a similar note:
“In other words, certiorari is not confined by a narrow conception of  locus
standi. It contains an element of the actio popularis. This  is  because  it
looks beyond the personal rights of the applicant; it is  designed  to  keep
the machinery of justice in proper  working  order  by  preventing  inferior
tribunals and public authorities from abusing their powers.”

In Dabholkar case, one of us wrote in his separate opinion:
“The possible apprehension  that  widening  legal  standing  with  a  public
connotation may unloose a  flood  of  litigation  which  may  overwhelm  the
Judges is misplaced because  public  resort  to  court  to  suppress  public
mischief is a tribute to the justice system.”
This view is echoed by the Australian Law Reforms Commission.

      XX            XX             XX

25. In India also, the criminal law envisages the  State  as  a  prosecutor.
Under the Code of Criminal Procedure, the machinery of the State is  set  in
motion on information received by the police or on a complaint  filed  by  a
private person before a Magistrate. If the case proceeds to  trial  and  the
accused is acquitted, the right to appeal against the acquittal  is  closely
circumscribed. Under the Code of Criminal Procedure,  1898,  the  State  was
entitled to appeal to the High Court, and the complainant could do  so  only
if granted special leave to appeal by the High Court. The  right  of  appeal
was not given to other  interested  persons.  Under  the  Code  of  Criminal
Procedure 1973, the right of appeal vested in the States has now  been  made
subject to leave  being  granted  to  the  State  by  the  High  Court.  The
complainant continues to be subject to the prerequisite  condition  that  he
must obtain special leave to appeal. The fetters so imposed on the right  to
appeal are prompted by the reluctance to  expose  a  person,  who  has  been
acquitted by a competent court of a criminal  charge,  to  the  anxiety  and
tension of a further examination of the case, even though it is  held  by  a
superior court. The Law Commission of India gave  anxious  thought  to  this
matter, and while noting that the Code recognised a few  exceptions  by  way
of permitting a person aggrieved to initiate proceedings  in  certain  cases
and permitting the complainant to appeal against an acquittal  with  special
leave of the High Court, expressed itself against the  general  desirability
to encourage appeals against  acquittal.  It  referred  to  the  common  law
jurisprudence obtaining in England  and  other  countries  where  a  limited
right of appeal against acquittal was vested in  the  State  and  where  the
emphasis rested on the need to decide a point of law of  general  importance
in the interests of the general administration  and  proper  development  of
the criminal law. But simultaneously the Law Commission also noted  that  if
the right to appeal  against  acquittal  was  retained  and  extended  to  a
complainant the law should logically cover  also  cases  not  instituted  on
complaint. It observed:

“Extreme cases of manifest injustice, where the  Government  fails  to  act,
and the party aggrieved has  a  strong  feeling  that  the  matter  requires
further consideration, should not, in our view, be left to the mercy of  the
Government. To inspire and maintain  confidence  in  the  administration  of
justice, the limited right of appeal with leave given  to  a  private  party
should be retained, and should embrace cases initiated on private  complaint
or otherwise at the instance of an aggrieved person.”

However, when the Criminal Procedure Code, 1973 was enacted the statute,  as
we have seen, confined the right to appeal, in the case of  private  parties
to a complainant. This is, as it were, a material indication of  the  policy
of the law.”
            (emphasis supplied by this Court)



Further, this Court in the case of Ramakant  Rai’s  case  (supra)  has  held
thus:

“12. A doubt has been raised about the competence  of  a  private  party  as
distinguished from the State, to  invoke  the  jurisdiction  of  this  Court
under Article 136  of  the  Constitution  of  India,  1950  (in  short  “the
Constitution”) against a judgment of acquittal by the High Court. We do  not
see any substance in the doubt. The appellate power  vested  in  this  Court
under Article 136 of the  Constitution  is  not  to  be  confused  with  the
ordinary  appellate  power  exercised  by  appellate  courts  and  Appellate
Tribunals under specific statutes.  It  is  a  plenary  power,  “exercisable
outside the purview of  ordinary  law”  to  meet  the  pressing  demands  of
justice (see Durga Shankar Mehta v. Raghuraj  Singh).  Article  136  of  the
Constitution neither confers on anyone the right to invoke the  jurisdiction
of this Court nor inhibits anyone from invoking  the  Court’s  jurisdiction.
The power is vested in this Court  but  the  right  to  invoke  the  Court’s
jurisdiction is vested in no one. The exercise of the power  of  this  Court
is not circumscribed by any limitation as to who  may  invoke  it.  Where  a
judgment of acquittal by the High Court has led to a serious miscarriage  of
justice, this Court cannot refrain from doing  its  duty  and  abstain  from
interfering on the ground that  a  private  party  and  not  the  State  has
invoked the Court’s jurisdiction. We do not have  slightest  doubt  that  we
can entertain appeals against judgments of acquittal by the  High  Court  at
the instance of interested private parties also. The circumstance  that  the
Criminal Procedure Code, 1973 (in short “the Code”) does not provide for  an
appeal to the High Court against an order  of  acquittal  by  a  subordinate
court, at the instance of a private party, has no relevance to the  question
of the power of this Court under Article 136. We may mention that  in  Mohan
Lal v. Ajit Singh this Court interfered with a judgment of acquittal by  the
High Court  at  the  instance  of  a  private  party.  An  apprehension  was
expressed that if appeals against judgments of acquittal at the instance  of
private parties are permitted there may be a flood of  appeals.  We  do  not
share the apprehension. Appeals under Article 136 of  the  Constitution  are
entertained by special leave granted by this Court, whether it is the  State
or a private party that invokes the jurisdiction of this Court, and  special
leave is not granted as a matter of course but only for good and  sufficient
reasons, on well-established practice of this Court.”


In Esher Singh’s case (supra), it has been held by this Court  that  Article
136 of the Constitution of India neither confers  on  anyone  the  right  to
invoke the jurisdiction of this Court nor inhibits anyone from invoking  it.
The relevant para 29 of the case reads thus:

“29. A doubt has been raised  in  many  cases  about  the  competence  of  a
private party as distinguished from the State, to  invoke  the  jurisdiction
of this Court under Article 136 of the Constitution against  a  judgment  of
acquittal by the High Court. We do not see any substance in the  doubt.  The
appellate power vested in this Court under Article 136 of  the  Constitution
is not to be confused with ordinary appellate power exercised  by  appellate
courts and appellate tribunals under specific  statutes.  It  is  a  plenary
power “exercisable  outside  the  purview  of  ordinary  law”  to  meet  the
pressing demands of justice. (See Durga Shankar Mehta  v.  Raghuraj  Singh.)
Article 136 of the Constitution neither  confers  on  anyone  the  right  to
invoke the jurisdiction of this Court nor inhibits anyone from invoking  the
Court’s jurisdiction. The power is vested in this Court  but  the  right  to
invoke the Court’s jurisdiction is vested in no one.  The  exercise  of  the
power of this Court is not circumscribed by any limitation  as  to  who  may
invoke it. Where a judgment of acquittal by the High  Court  has  led  to  a
serious miscarriage of justice, this Court cannot  refrain  from  doing  its
duty and abstain from interfering on the ground that  a  private  party  and
not the State has invoked the Court’s  jurisdiction.  We  do  not  have  the
slightest  doubt  that  we  can  entertain  appeals  against  judgments   of
acquittal by the High Court at the instance of  interested  private  parties
also. The circumstance that the Code does not provide for an appeal  to  the
High Court against an order of acquittal by  a  subordinate  court,  at  the
instance of a private party, has no relevance to the question of  the  power
of this Court under Article 136. We may mention that in Mohan  Lal  v.  Ajit
Singh this Court interfered with a judgment of acquittal by the  High  Court
at the instance of a private party. An apprehension was  expressed  that  if
appeals against judgments of acquittal at the instance  of  private  parties
are permitted, there may be  a  flood  of  appeals.  We  do  not  share  the
apprehension. Appeals under Article 136 of the Constitution are  entertained
by special leave granted by this  Court,  whether  it  is  the  State  or  a
private party that invokes the  jurisdiction  of  this  Court,  and  special
leave is not granted as a matter of course but only for good and  sufficient
reasons, well established by the practice of this Court.”
              (emphasis supplied by this Court)

Further, in Rama Kant Verma’s case (supra) this  Court  has  reiterated  the
aforesaid view that the appellate power of this Court under Article  136  of
the Constitution of India is not just an ordinary appellate power  exercised
by appellate courts and appellate tribunals under specific statutes.  It  is
a plenary power which can be exercised outside the purview of  ordinary  law
to meet the ends of justice. The relevant para 16 of the case reads thus:

“16. In Ramakant Rai v. Madan Rai it was inter  alia  observed  as  follows:
(SCC p. 402, para 12)

“12. A doubt has been raised about the competence  of  a  private  party  as
distinguished from the State, to  invoke  the  jurisdiction  of  this  Court
under Article 136  of  the  Constitution  of  India,  1950  (in  short  ‘the
Constitution’) against a judgment of acquittal by the High Court. We do  not
see any substance in the doubt. The appellate power  vested  in  this  Court
under Article 136 of the  Constitution  is  not  to  be  confused  with  the
ordinary  appellate  power  exercised  by  appellate  courts  and  Appellate
Tribunals under specific statutes.  It  is  a  plenary  power,  ‘exercisable
outside the purview of  ordinary  law’  to  meet  the  pressing  demands  of
justice (see Durga Shankar Mehta v. Thakur Raghuraj Singh). Article  136  of
the  Constitution  neither  confers  on  anyone  the  right  to  invoke  the
jurisdiction of this Court nor inhibits anyone  from  invoking  the  Court’s
jurisdiction. The power is vested in this Court but the right to invoke  the
Court’s jurisdiction is vested in no one. The exercise of the power of  this
Court is not circumscribed by any limitation as to who may invoke it.  Where
a judgment of acquittal by the High Court has led to a  serious  miscarriage
of justice, this Court cannot refrain from doing its duty and  abstain  from
interfering on the ground that  a  private  party  and  not  the  State  has
invoked the Court’s jurisdiction. We do not have  slightest  doubt  that  we
can entertain appeals against judgments of acquittal by the  High  Court  at
the instance of interested private parties also. The circumstance  that  the
Criminal Procedure Code, 1973 (in short ‘the Code’) does not provide for  an
appeal to the High Court against an order  of  acquittal  by  a  subordinate
court, at the instance of a private party, has no relevance to the  question
of the power of this Court under Article 136. We may mention that  in  Mohan
Lal v. Ajit Singh this Court interfered with a judgment of acquittal by  the
High Court  at  the  instance  of  a  private  party.  An  apprehension  was
expressed that if appeals against judgments of acquittal at the instance  of
private parties are permitted there may be a flood of  appeals.  We  do  not
share the apprehension. Appeals under Article 136 of  the  Constitution  are
entertained by special leave granted by this Court, whether it is the  State
or a private party that invokes the jurisdiction of this Court, and  special
leave is not granted as a matter of course but only for good and  sufficient
reasons, on well-established practice of this Court.””
    (emphasis supplied by this Court)


 After considering the case law relied upon by the learned counsel  for  the
appellants as well as the respondents, in the light of the  material  placed
on record, we are of the view that  the  appellants  have  locus  standi  to
maintain this appeal. From the material placed on record, it is  clear  that
the appellants have precise connection with the matter  at  hand  and  thus,
have locus to maintain this appeal. The learned counsel for  the  appellants
has rightly placed reliance upon the Constitution  Bench  judgment  of  this
Court, namely, P.S.R Sadhanantham (supra) and other decisions of this  Court
in Ramakant Rai,  Esher  Singh,  Ramakant  Verma  (supra).  Further,  it  is
pertinent here to observe that it may not be possible to strictly  enumerate
as to who all will have locus  to  maintain  an  appeal  before  this  Court
invoking Article 136 of the Constitution  of  India,  it  depends  upon  the
factual matrix of each case, as each case has its unique set  of  facts.  It
is clear from the aforementioned case law that the Court should  be  liberal
in allowing any third party, having bonafide connection with the matter,  to
maintain the appeal with a view to  advance  substantial  justice.  However,
this power of allowing a  third  party  to  maintain  an  appeal  should  be
exercised with due care and caution. Persons, unconnected  with  the  matter
under consideration or having personal grievance against the accused  should
be checked. A strict vigilance is required to be maintained in this regard.



Answer to Point No.2



  A careful reading of the  material  placed  on  record  reveals  that  the
learned CJM took cognizance of the offences  alleged  against  the  accused-
persons after a perusal  of  case  diary,  chargesheet  and  other  material
placed before the court. The cognizance was taken, as  a  prima  facie  case
was made out against the accused-persons. It is well  settled  that  at  the
stage of taking cognizance, the court should not get into the merits of  the
case made out by the police, in the chargesheet filed by them, with  a  view
to calculate the success rate of prosecution in  that  particular  case.  At
this stage, the court’s duty  is  limited  to  the  extent  of  finding  out
whether from the material placed before it, offence alleged therein  against
the accused is made out or not with a  view  to  proceed  further  with  the
case. The proposition of law relating to Section 482 of the  CrPC  has  been
elaborately dealt with by this Court  in  Bhajan  Lal’s  case  (supra).  The
relevant paras 102 and 103 of which read thus:

“102. In  the  backdrop  of  the  interpretation  of  the  various  relevant
provisions of the Code under Chapter  XIV  and  of  the  principles  of  law
enunciated by this Court in a series of decisions relating to  the  exercise
of the extraordinary power under Article 226 or the  inherent  powers  under
Section 482 of the Code which we have extracted  and  reproduced  above,  we
give the following categories of cases by way of illustration  wherein  such
power could be exercised either to prevent  abuse  of  the  process  of  any
court or otherwise to secure the ends of  justice,  though  it  may  not  be
possible  to  lay  down  any  precise,  clearly  defined  and   sufficiently
channelised and inflexible guidelines or  rigid  formulae  and  to  give  an
exhaustive list of myriad kinds  of  cases  wherein  such  power  should  be
exercised.
(1) Where the allegations made  in  the  first  information  report  or  the
complaint, even if they are taken at their face value and accepted in  their
entirety do not prima facie constitute  any  offence  or  make  out  a  case
against the accused.
(2) Where  the  allegations  in  the  first  information  report  and  other
materials, if any,  accompanying  the  FIR  do  not  disclose  a  cognizable
offence, justifying  an  investigation  by  police  officers  under  Section
156(1) of the Code except under an order of a Magistrate within the  purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR  or  complaint  and
the  evidence  collected  in  support  of  the  same  do  not  disclose  the
commission of any offence and make out a case against the accused.
(4) Where, the allegations  in  the  FIR  do  not  constitute  a  cognizable
offence but constitute only a non-cognizable offence,  no  investigation  is
permitted  by  a  police  officer  without  an  order  of  a  Magistrate  as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint  are  so  absurd  and
inherently improbable 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 concerned Act  (under  which  a  criminal  proceeding  is
instituted) to the institution and continuance  of  the  proceedings  and/or
where there is a specific provision  in  the  Code  or  the  concerned  Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal  proceeding  is  manifestly  attended  with  mala  fide
and/or where the proceeding  is  maliciously  instituted  with  an  ulterior
motive for wreaking vengeance on the accused and with a view  to  spite  him
due to private and personal grudge.

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.”



Further, this Court in the case of Rajiv Thapar v. Madan Lal  Kapoor[9]  has
laid down certain  parameters  to  be  followed  by  the  High  Court  while
exercising its inherent  power  under  Section  482  of  the  CrPC,  in  the
following manner:

“29. The issue being examined in the instant case  is  the  jurisdiction  of
the High  Court  under  Section  482  CrPC,  if  it  chooses  to  quash  the
initiation of the prosecution against an accused at  the  stage  of  issuing
process, or at the stage of committal, or even at the stage  of  framing  of
charges. These are all stages before the commencement of the  actual  trial.
The same parameters would naturally be available for later stages  as  well.
The power vested in the High Court under Section 482  CrPC,  at  the  stages
referred to hereinabove, would have far-reaching  consequences  inasmuch  as
it would negate the prosecution’s/complainant’s case  without  allowing  the
prosecution/complainant to lead evidence. Such a determination  must  always
be rendered with caution, care and circumspection. To  invoke  its  inherent
jurisdiction under  Section  482  CrPC  the  High  Court  has  to  be  fully
satisfied that the material produced by the accused is such that would  lead
to the conclusion that his/their defence is based on sound, reasonable,  and
indubitable facts; the material produced is  such  as  would  rule  out  and
displace the assertions  contained  in  the  charges  levelled  against  the
accused; and the material produced is  such  as  would  clearly  reject  and
overrule the veracity  of  the  allegations  contained  in  the  accusations
levelled by the prosecution/complainant. It should  be  sufficient  to  rule
out,   reject   and   discard    the    accusations    levelled    by    the
prosecution/complainant, without the necessity of  recording  any  evidence.
For this the material relied upon  by  the  defence  should  not  have  been
refuted, or alternatively, cannot be justifiably refuted, being material  of
sterling and impeccable quality. The material relied  upon  by  the  accused
should be such as would persuade a reasonable person to dismiss and  condemn
the actual basis of the accusations as  false.  In  such  a  situation,  the
judicial conscience of the High Court would  persuade  it  to  exercise  its
power under Section 482 CrPC to quash such criminal  proceedings,  for  that
would prevent abuse of  process  of  the  court,  and  secure  the  ends  of
justice.

30. Based on the factors canvassed in the  foregoing  paragraphs,  we  would
delineate the following steps to determine the  veracity  of  a  prayer  for
quashment raised by an accused by invoking the  power  vested  in  the  High
Court under Section 482 CrPC:

30.1. Step one: whether the material relied upon by the  accused  is  sound,
reasonable, and indubitable i.e. the material is of sterling and  impeccable
quality?
30.2. Step two: whether the material relied upon by the accused  would  rule
out the assertions contained in the charges  levelled  against  the  accused
i.e.  the  material  is  sufficient  to  reject  and  overrule  the  factual
assertions contained in the complaint i.e. the material  is  such  as  would
persuade a reasonable person to dismiss and condemn  the  factual  basis  of
the accusations as false?
30.3. Step three: whether the material relied upon by the  accused  has  not
been refuted by the prosecution/complainant; and/or  the  material  is  such
that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an  abuse
of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in  the  affirmative,  the  judicial
conscience of the High Court should  persuade  it  to  quash  such  criminal
proceedings in exercise of power vested in it under Section 482  CrPC.  Such
exercise of  power,  besides  doing  justice  to  the  accused,  would  save
precious court time, which would otherwise  be  wasted  in  holding  such  a
trial (as well as proceedings arising therefrom) specially when it is  clear
that the same would not conclude in the conviction of the accused.”
              (emphasis supplied by this Court)

 After considering the rival legal contentions urged by  both  the  parties,
case law referred to supra and the material placed on record, we are of  the
view that the High Court has exceeded its jurisdiction under Section 482  of
the CrPC. It has erred in  quashing  the  cognizance  order  passed  by  the
learned CJM without appreciating the material placed before  it  in  correct
perspective. The High Court has ignored  certain  important  facts,  namely,
that on 17.10.2008, the appellant  no.1  was  allegedly  threatened  by  the
accused-Mukhtar for which FIR No. 104/08  was  registered  against  him  for
offences punishable under  Sections  25  and  26  of  the  Arms  Act,  1959.
Further, there are statements of various witnesses made  under  Section  164
of the CrPC, before a judicial magistrate, to the effect that  the  deceased
has been murdered by none  other  than  her  husband-Mukhtar.  The  evidence
collected by the I.O. by recording the statement of  prosecution  witnesses,
filed alongwith the chargesheet was  duly  considered  by  the  learned  CJM
before taking cognizance and  therefore,  the  same  should  not  have  been
interfered with by the High Court in exercise of its  inherent  power  under
Section 482 of the CrPC.



 Further, the High Court has  failed  to  take  into  consideration  another
important aspect that the case at hand  relates  to  the  grave  offence  of
murder and that the criminal proceedings related thereto should not  lightly
be interfered with, which is a well settled proposition of law.



Answer to Point No.3
 Thus, for the aforesaid reasons, this Court is of the view  that  the  High
Court in the instant case has  failed  to  appreciate  the  material  placed
before it in the light of law laid down by this Court in Bhajan  Lal’s  case
(supra) and has exceeded its jurisdiction while exercising its  power  under
Section 482 of the CrPC. Therefore, the impugned judgment and  order  passed
by the High Court is liable to be set aside by this Court.



The impugned judgment and order of the High  Court  is  set  aside  and  the
matter is remitted to the learned CJM for proceeding further  in  accordance
with law. The appeal is allowed.


                        ………………………………………………………J.
                        [V. GOPALA GOWDA]


                                 ………………………………………………………J.
                                 [UDAY UMESH LALIT]
     New Delhi,
 12th April, 2016
-----------------------
[1]
      [2]  (1980) 3 SCC 141
[3]
      [4]  (2003) 12 SCC 395
[5]
      [6]  (2004) 11 SCC 585
[7]
      [8]  (2008) 17 SCC 257
[9]
      [10]  (2012) 1 SCC 680
[11]
      [12]  (2001) 3 SCC 462
[13]
      [14]  2008 Cri. L.J. 995
[15]
      [16]  1992 Supp(1) SCC 335
[17]
      [18]  (2013) 3 SCC 330

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