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Tuesday, April 4, 2017

Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect: “(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.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings. 40. In the result, appeal is allowed, the judgment of the High Court dated 16.12.2016 as well as the order of Additional Chief Judicial Magistrate dated 03.08.2016 and the order of the Sessions Judge dated 22.10.2016 including the entire criminal proceedings are quashed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.577 OF 2017
                  (ARISING OUT OF SLP(CRL.) No.287 OF 2017)


VINEET KUMAR & ORS.                    .... APPELLANTS

                                   VERSUS

STATE OF U.P. & ANR.                   .... RESPONDENTS


                               J U D G M E N T

ASHOK BHUSHAN, J.

1.    This appeal has been filed against the judgment  dated  16.12.2016  of
the High Court of Judicature at Allahabad dismissing the  Application  filed
by  the  appellants  under  Section  482  Cr.P.C.   Appellants   had   filed
Application under Section 482 Cr.P.C. for quashing the  judgment  and  order
dated  03.08.2016  passed  by  Additional  Chief   Judicial   Magistrate-IV,
Moradabad summoning the appellants for an offence under Section 452,  376(d)
and 323 IPC, as well as  order  dated  22.10.2016  passed  by  the  District
Sessions Judge, Moradabad dismissing the  Criminal  Revision  filed  by  the
appellants. The appellants shall hereinafter be referred to as  accused  and
respondent No.2 as complainant. The facts of the case as  emerged  from  the
records need to be noted for deciding the issues raised in this appeal.

2.     The  accused  have   made   several   financial   transactions   with
complainant, Smt. Rekha Rani, her  husband,  Akhilesh  Kumar  and  her  son,
Ankur in the months of May, 2015. Accused No.3 gave  Rs.9  lakh  to  husband
and son of the complainant for business purposes. An amount of Rs.7 lakh  50
thousand was given in cash to complainant and her husband by  accused  No.1.
Further, husband of complainant received Rs.3 lakh 60 thousand in  cash  and
Rs.2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1.

3.    An agreement dated  29.05.2015  was  signed  by  the  husband  of  the
complainant and accused No.1 acknowledging  the  payment  of  Rs.3  lakh  60
thousand in cash and Rs.2 lakh 40 thousand by cheque. A cheque of Rs.6  lakh
was handed over by the husband of the complainant to accused No.1 to  ensure
the re-payment. Another agreement between the complainant and  accused  No.1
was entered into on 01.06.2015 wherein it was acknowledged that  complainant
and her husband had taken Rs.7 lakh 50 thousand in cash from  accused  No.1.
Earlier, husband of complainant took Rs.6 lakh from  accused  No.1.  Parties
entered into an agreement agreeing with certain conditions. Third  agreement
 was entered into between  the  son  of  complainant  and  accused  No.1  on
31.08.2015 wherein son of complainant acknowledged  that  his  parents  have
taken an amount of Rs.14 lakh 50 thousand. Complainant and her husband  gave
cheques of Rs.6 lakh and Rs.8 lakh 50 thousand  to  accused  No.1  drawn  on
Prathama Bank, Kanth Branch, District Moradabad for recovery of  the  amount
given by the accused. Agreement noticed that the amount  was  borrowed  with
promise to return the amount. The agreements were  written  on  Non-Judicial
Stamp Papers which were not  registered  but  contained  signatures  of  the
parties mentioned therein.

4.    Accused No.3  filed  a  complaint  under  Section  138  of  Negotiable
Instruments Act being Complaint No.1587/2015 against husband and son of  the
complainant with the allegation that amount of Rs.9 lakh  was  paid  to  the
opposite parties who had issued a cheque of Rs.9  lakh  with  the  assurance
that the amount will be repaid by 22.08.2016. It was stated by accused  No.3
in the complaint that after lapse of time when the amount was not paid,  the
cheque was deposited which was returned back by the  Bank  with  remark  “No
Sufficient Balance”. When  the  opposite  parties  were  contacted  in  this
regard, the opposite parties told not come to them. After  giving  a  notice
on 05.09.2016, complaint was filed on  21.09.2015.  Accused  No.1  had  also
filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against  the
complainant, her husband and son. Cheque given by son of the complainant  of
Rs.6 lakh to accused No.2 was also dishonoured. Complaint filed  by  accused
No.1 under Section 138 of  Negotiable  Instruments  Act  was  registered  as
Complaint No.3280/2015. Complaints against complainant, her husband and  son
were filed in the month of September, 2015 alleging  dishonoured  of  cheque
and complaint of non-payment of amount given  to  the  complainant  and  her
husband and son.

5.    On 30.10.2015 complainant filed an Application  under  Section  156(3)
Cr.P.C. against all the three accused alleging commission of  offence  under
Section 376(d),323 and 452 IPC.  In  the  application  allegation  was  made
against the accused that on 22.10.2015 at about  7.30  p.m.  all  the  three
accused came to the house of the complainant. At that time she was alone  in
the house. It was alleged that all the  three  accused  started  misbehaving
with her. They beat her  with stick, fist  and  kick.  Thereafter,  accused,
Vineet and Nitendra raped her one by one while Sonu stood outside the  room.
When Sonu told them about arrival of  complaint's  husband,  all  the  three
accused fled away. It was further  alleged  that  she  went  to  the  Police
Station on the same day but the Police did not register FIR. An order  dated
03.11.2015 was  passed  by  the  Additional  Chief  Judicial  Magistrate-IV,
Moradabad  for  registration  and  investigation  to  the  concerned  Police
Station. On 06.11.2015, the First Information Report  was  registered  being
No.251/2015 at  Police  Station  Kanth,  District  Moradabad  under  Section
376(d), 323, 452 IPC against the accused. After  registration of  the  case,
crime was investigated by Investigating Officer(IO).  The  IO  recorded  the
statements of complainant, her husband  and  mother-in-law.  Complainant  in
her statement repeated her allegation. It was further stated that  she  went
along with her husband to Police Station but report was not lodged. On  next
day, she went  to  Government  Hospital,  Moradabad  with  her  husband  for
medical  examination.  Doctor  conducted  medical  examination  to  external
injuries but refused to her internal examination. Husband and  father-in-law
of the complainant also recorded statements. They stated  that  before  they
arrived  at  the  house,  accused  had  already  fled  away.  IO  asked  the
complainant  “as  to  whether  now  she  is  ready  to  get   done   medical
examination”, husband of the complainant  answered  “no,  now  there  is  no
benefit out of medical examination. Now, I  don't  want  to  get  my  wife's
medical examination done as much time has been elapsed“.  When  the  husband
was also asked some questions to get her wife medically  examined  following
answers were given by the husband:
"Question – Now get the medical  examination  of  hour  wife  done  so  that
D.N.A. etc.      proceeding could be done?

Ans.- This occurrence is of 22.10.2015 in the  evening  at  19.30  hrs.  and
since then till now I have  also  have  sexual   intercourse  with  my  wife
several times. Thus, now there is no benefit out of medical examination  and
instead I myself will be positive.”


6.    Before the IO, complainant, her husband, father-in-law and  mother-in-
law all stated that at the time of occurrence there was no electricity.

7.    The accused also recorded statement of various persons in  support  of
the claim of the accused that at the time alleged by  the  complainant  they
were not present and till 9 p.m. they were with their friends  in  Dushehara
Mela. IO recorded the statement of certain persons who stated  that  accused
were with them till 9 p.m. on 22.10.2015.
8.    Although, the complainant and her husband refused medical  examination
when they are so asked  by  IO  on  07.11.2015,  but  she  got  her  medical
examination done on 20.11.2015. Pathology Report (filed at page 50 of  paper
book) stated as : “No spermatozoa alive or  dead  are  seeing  the  received
smears within sealed envelope”.

9.    On 24.11.2015 complainant got her  statement  recorded  under  Section
164 Cr.P.C. In the statement the age  of  complainant  was  recorded  as  47
years. In the statement the complainant repeated her allegations.

10.   After statement under Section 164 Cr.P.C.  was  recorded,  IO  carried
out  detailed  investigation  by  recording   statements   of   brother   of
complainant's husband and his wife. Along with the complainant, the  brother
of her husband as well as his wife were also staying in the  same  house  at
the relevant time. The IO recorded the statement of  Nikesh  Kumar,  brother
of complainant's husband. It is useful to extract  below  the  statement  of
brother of complainant's husband as recorded by the IO:
      "Statement of  Shri  Nikesh  Kumar  son  of  Subhash  Chandra  Vishnoi
resident of Mohalla Vishanpura, Kasba Kanth is  present.  Upon  enquiry  has
stated that on 22.10.15 there was Dushehara Mela. I  alongwith  my  children
had gone to see Mela(Fair) and had returned back to my  house  at  5.00-5.30
p.m. Rekha Rani is my real Bhabhi (sister-in-law). There has  been  monetary
transaction between Akhilesh and Vineet. Time to time  my  brother  used  to
borrow a sum of Rs.Two lakh, four lakh from Vineet and used  to  invest  the
same in his business and then used to return. Now there  has  been  inter-se
dispute among them owing to monetary transaction. On this dispute my sister-
in-law Rekha has instituted case against Vineet and others. It is  not  good
to mention such shameful facts and  my  sister-in-law  has  not  done  good.
There are young children in the family and there would be  wrong  effect  of
these facts. I have spade my brother Akhilesh and father have  also  scolded
him. Now he is saying that mistake  has  been  committed  and  whatever  has
occurred has occurred. I and my wife have gone to Court. Moradabad and  have
submitted our affidavit in the Court. We have  mentioned  the  correct  fact
therein. We will tell the same fact in the Court  that  no  such  occurrence
has taken place in our house. My Bhabhi Rekha  has  lodged  a  case  in  the
Court out of anger which is a false case.”


11.    The wife of Nikesh Kumar, Smt. Bina Vishnoi also made  the  following
statement before the IO which is the part of the Case Diary:
      "Statement of Smt.Bina Vishnoi w/o Nikesh Kumar  resident  of  Mohalla
Vishanpura Kasba and P.S. Kanth is present. Upon  enquiry,  she  has  stated
that on 22.10.15 there was Dushehara festival and we after seeing  Dushehara
Mela had returned back and came at our  house  at  about  5.00  p.m.  I  had
opened my shop. I have a grocery shop. Most of transaction  takes  place  in
the evening. Rekha is my elder real Jethani. My Jeth Akhilesh  has  monetary
transaction with Vineet and others. He used to borrow money  Rs.  Two  lakh,
four lakh from Vineet to invest the same in his  business  and  the  returns
the same. Now what has happened I do  not  know  and  inter-se  dispute  has
cropped up among them and my Jethani has taken such a wrong step which  does
not happens in our house. Our family  and  the  family  of  Vineet  are  the
respected family of Mohalla and we  have  business  and  trade  of  lakh  of
rupees. We have spade an scolded them. Our children are also growing  to  be
young. When you people visit it has effect on them. Now they  are  realising
the mistake. No occurrence of rape etc. has happened in  our  house  and  in
this regard the complete Mohalla will tender evidence. I have even  appeared
in the Court and submitted an affidavit and will tell the true fact  in  the
Court.

Question- On 22.10.15 in the evening at 7.30      p.m. you were  present  at
your room/shop   the   whether you have heard  any  cry  or  had        seen
Vineet coming or going?

Ans. - On 22.10.15 since 5.00 p.m. we were at our house and no one had  come
in our house and Rekha has informed us. No such occurrence  of  rape   could
take place in our house. You could enquire from our all neighbours.”


12.   The affidavits were also given by Nikesh Kumar and Smt.  Bina  Vishnoi
who were residing in the same house. Smt. Bina Vishnoi  is  also  running  a
shop of General Store in one portion of the house. She stated  that  on  the
date of occurrence Rekha  Rani  was  in  her  parental  house  to  celebrate
Dushehara and was not present at her house.

13.    IO  after  completion  of  investigation  and   after   taking   into
consideration the materials collected during the investigation came  to  the
conclusion that no such incident took place on 22.10.2015 as alleged by  the
complainant. Final Report No.40/15 was submitted by  the  IO  on  29.11.2015
which is to the following effect:
      “The First Information Report in  the  above  mentioned  incident  was
registered on 6.11.2015 and the investigation was  taken  up  by  me.  After
recording the statement of the witnesses and  inspection  of  the  place  of
occurrence the allegation was found to be false by me. Therefore this  final
report No.40/15 is being submitted for your consideration.”

14.   After submission  of  Final  Report  on  29.11.2015  Police  has  also
submitted a further report before the Additional Chief  Judicial  Magistrate
for  initiating  proceeding  under   Section   182   Cr.P.C.   against   the
complainant. Respondent No.2 moved Protest  Petition  dated  07.01.2016.  It
was allowed by the Addl.CJM on 28.05.2016. An Application under Section  482
Cr.P.C. was filed before the High Court. It  was  allowed  and  order  dated
28.05.2016 was set aside directing the Magistrate to pass fresh  order.  The
Magistrate  passed  again  order  dated  03.08.2016  summoned  the  accused.
Revision was filed  before  the  Sessions  Judge  against  the  order  dated
03.08.2016 which was dismissed by order dated 22.10.2016.

15.   The accused filed Application under Section 482 Cr.P.C. to  quash  the
order dated 03.08.2016 and the order passed by the Sessions  Judge.  It  was
prayed by the accused that  orders  were  passed  without  appreciating  the
evidence and material on records, they deserve  to  be  set  aside  and  the
Protest Petition be  rejected.   The  High  Court  refused  the  prayer  for
quashing the orders by making the following observations:
      "From the perusal of the material  on  record  and  looking  into  the
facts of the case at this stage it cannot be said that no  offence  is  made
out against the applicants. All the submission made at the  Bar  relates  to
the dispute question of fact, which  cannot  be  adjudicated  upon  by  this
Court in exercise of power conferred  under  Section  482  Cr.P.C.  at  this
stage only prima facie case is to be seen in the light of the law laid  down
by Supreme Court in case of R.P. Kapur Vs. State  of  Punjab,  AIR  1960  SC
866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)426, State of Bihar  Vs.
R.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceuticals Works  Ltd.
Vs. Mohd. Saraful Haq and another (par 10) 205 SCC (Cr.) 283.  The  disputed
defence of the accused cannot be considered at this stage.”


16.   Aggrieved by the above judgment of the  High  Court  this  appeal  has
been filed.

17.    Learned  counsel  for  the   appellants   contended   that   criminal
proceedings initiated by the complainant in the facts of  the  present  case
was malafide and falsely initiated to save complainant, her husband and  son
from making repayment of the amount taken  by  them  with  regard  to  which
complaint under Section 138 of Negotiable Instruments  Act  by  the  accused
were already filed and pending. After registration of  case  on  Application
filed by the complainant under Section  156(3)  Cr.P.C.,  the  IO  conducted
thorough investigation by  recording  the  statements  of  complainant,  her
husband as well as husband's brother and brother's wife. Various  affidavits
were also received by the IO and after conducting  investigation  there  was
sufficient materials to come to the conclusion that a story of alleged  rape
was wholly false and no such incident had taken  place  as  alleged  by  the
complainant. He has submitted a Final Report in the  case  which   ought  to
have been accepted by the learned Magistrate. It is contended  that  Protest
Petition has been allowed without adverting to  the  material  collected  by
the IO. The fact that the Application under Section  156(3)  Cr.P.C.  itself
was filed after 8 days of alleged rape, there is no medical report to  prove
the alleged rape, these were sufficient to discard the allegations  made  by
the complainant. Summoning of the accused of such serious offence cannot  be
a mechanical exercise in  the  facts  and  circumstances  of  the  case  and
material collected during investigation which were part of the Final  Report
were required to be adverted to by  the  Court  while  rejecting  the  Final
Report. Learned counsel submits that prosecution in the present  case  is  a
clear abuse of the process of the Court and deserves  to  be  set  aside  in
exercise of jurisdiction under Section 482 Cr.P.C. by the High Court.

18.   Learned  counsel  appearing  for  the  respondent  No.2  refuting  the
submission made by the learned counsel for the appellants contended that  no
error has been committed by the  Courts  below  in  summoning  the  accused,
there was statement under Section 164 Cr.P.C. of the complainant  where  she
reiterated her case of rape by accused No.1 and 3. It is submitted  that  at
this stage the Court was not required to marshal the  evidence  and  examine
the charge on merit and the High  Court  has  rightly  refused  to  exercise
jurisdiction under Section 482 Cr.P.C. to quash the criminal proceedings.

19.   We have considered the submissions made by  the  parties  and  perused
the records.

20. Before we enter into the facts of the present case it  is  necessary  to
consider the ambit and scope  of  jurisdiction  under  Section  482  Cr.P.C.
vested in the High Court. Section 482 Cr.P.C. saves the  inherent  power  of
the High Court to make such orders as may be necessary  to  give  effect  to
any order under this Code, or to prevent abuse of the process of  any  Court
or otherwise to secure the ends of justice.

21.   This Court time and again has examined scope of jurisdiction  of  High
Court under Section 482 Cr.P.C.  and  laid  down  several  principles  which
govern the exercise of jurisdiction of High Court under Section 482  Cr.P.C.
A three-Judge Bench of this Court in State of  Karnataka  vs.  L.  Muniswamy
and others, 1977 (2) SCC 699,held that the High Court is entitled  to  quash
a proceeding if it comes to the conclusion that allowing the  proceeding  to
continue would be an abuse of the process of the Court or that the  ends  of
justice require that the proceeding ought to be quashed. In paragraph  7  of
the judgment following has been stated:
      “7....In the exercise of this  wholesome  power,  the  High  Court  is
entitled to quash a proceeding if it comes to the conclusion  that  allowing
the proceeding to continue would be an abuse of the process of the Court  or
that the ends of justice require that the proceeding ought  to  be  quashed.
The saving of the High Court’s inherent powers, both in civil  and  criminal
matters, is designed to achieve a salutary public purpose which  is  that  a
court proceeding ought not to be permitted to degenerate into  a  weapon  of
harassment or persecution. In a criminal case, the veiled  object  behind  a
lame prosecution, the very nature of the material on which the structure  of
the prosecution rests and the like would justify the High Court in  quashing
the proceeding in the interest of justice. The ends of  justice  are  higher
than the ends of  mere  law  though  justice  has  got  to  be  administered
according to laws made by the  legislature.  The  compelling  necessity  for
making these observations is  that  without  a  proper  realisation  of  the
object and purpose of the provision which seeks to save the inherent  powers
of the High Court to do justice, between the  State  and  its  subjects,  it
would be impossible to appreciate the width and  contours  of  that  salient
jurisdiction.”



22.   The judgment of this Court in State of Haryana and others  vs.  Bhajan
Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the  scope
and ambit of Section 482 Cr.P.C. Although in the above case this  Court  was
considering the power of  the  High  Court  to  quash  the  entire  criminal
proceeding including the FIR, the case arose out of an FIR registered  under
Section 161, 165 IPC and Section 5(2) of the Prevention of  Corruption  Act,
1947. This Court elaborately considered the scope of  Section  482  CR.P.C./
Article 226   in  the  context  of  quashing  the  proceedings  in  criminal
investigation. After noticing various earlier pronouncements of this  Court,
this Court enumerated certain Categories of cases  by  way  of  illustration
where power under 482 Cr.P.C. can be  exercised  to  prevent  abuse  of  the
process of the  Court  or  secure  ends  of  justice.  Paragraph  102  which
enumerates 7 categories of cases where power can be exercised under  Section
482 Cr.P.C. are extracted as follows:

      “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.”


23.   A three-Judge Bench in State of  Karnataka  vs.  M.  Devenderappa  and
another, 2002 (3) SCC 89, had occasion to consider the ambit of Section  482
Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid  down
that authority of the Court exists for advancement of  justice  and  if  any
attempt is made to abuse that authority  so  as  to  produce  injustice  the
Court has power to prevent abuse.  It  further  held  that  Court  would  be
justified to quash any proceeding if it  finds  that  initiation/continuance
of it amounts to abuse  of  the  process  of  Court  or  quashing  of  these
proceedings would otherwise serve the ends of justice.  Following  was  laid
down in paragraph 6:

“6......All courts, whether civil or criminal possess,  in  the  absence  of
any express provision, as inherent in their constitution,  all  such  powers
as are necessary to  do  the  right  and  to  undo  a  wrong  in  course  of
administration of  justice  on  the  principle  quando  lex  aliquid  alicui
concedit, concedere videtur et id sine quo res ipsae esse non  potest  (when
the law gives a person anything it gives him that without  which  it  cannot
exist). While exercising powers  under  the  section,  the  court  does  not
function as a court of appeal or revision. Inherent jurisdiction  under  the
section though wide has  to  be  exercised  sparingly,  carefully  and  with
caution and only when such exercise is justified by the  tests  specifically
laid down in the section itself. It is to be exercised ex  debito  justitiae
to do real and substantial justice for the  administration  of  which  alone
courts exist. Authority of the court exists for advancement of  justice  and
if any attempt is made to abuse that authority so as to  produce  injustice,
the court has power to prevent abuse. It would be an  abuse  of  process  of
the court to allow any action which would result in  injustice  and  prevent
promotion of justice. In exercise of the powers court would be justified  to
quash any proceeding if it finds that initiation/continuance of  it  amounts
to abuse of the process of court or  quashing  of  these  proceedings  would
otherwise serve the ends of justice. When no offence  is  disclosed  by  the
complaint, the court may examine the question of fact. When a  complaint  is
sought to be quashed, it is  permissible  to  look  into  the  materials  to
assess what the complainant has alleged and whether any offence is made  out
even if the allegations are accepted in toto.”


      Further in paragraph 8 following was stated:


“8.....Judicial process should not  be  an  instrument  of  oppression,  or,
needless  harassment.  Court  should  be  circumspect   and   judicious   in
exercising discretion and should take all relevant facts  and  circumstances
into consideration before issuing process, lest it would  be  an  instrument
in the hands of a private complainant to  unleash  vendetta  to  harass  any
person needlessly. At the same time the section is not an instrument  handed
over to an accused to  short-circuit  a  prosecution  and  bring  about  its
sudden death. The scope of exercise of power under Section 482 of  the  Code
and the categories of cases where the High  Court  may  exercise  its  power
under it relating to cognizable offences to prevent abuse of process of  any
court or otherwise to secure the ends  of  justice  were  set  out  in  some
detail by this Court in State of Haryana v. Bhajan Lal.”


24.   In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14) SCC  244,
this Court was considering the challenge to the order  of  the  Madras  High
Court where Application was under Section  482  Cr.P.C.  to  quash  criminal
proceedings under Section 498A IPC and Section 4 of Dowry  Prohibition  Act,
1961. It was contended before  this  Court  that  the  complaint  filed  was
nothing but an abuse of the process of law and allegations  were  unfounded.
The prosecuting agency  contested  the  petition  filed  under  Section  482
Cr.P.C. taking the stand that a bare  perusal  of  the  complaint  discloses
commission of alleged offences and,  therefore,  it  is  not  a  case  which
needed to be allowed. The High Court accepted the case  of  the  prosecution
and dismissed the application.  This  Court  referred  to  the  judgment  in
Bhajan Lal case (supra) and held that the case fell within Category 7.  Apex
Court relying on Category 7 has held  that  Application  under  Section  482
deserved to be allowed and it quashed the proceedings.

25.   In another case in  Priya Vrat Singh and others vs.  Shyam  Ji  Sahai,
2008 (8) SCC 232, this Court relied on Category 7 as laid down in  State  of
Haryana vs. Bhajan Lal(supra). In the above case the  Allahabad  High  Court
had dismissed an Application filed under Section 482 Cr.P.C.  to  quash  the
proceedings under Section 494, 120-B and 109 IPC and  Section  3  and  4  of
Dowry Prohibition Act. After noticing the background  facts  and  parameters
for exercise of power under Section 482  Cr.P.C.  following  was  stated  in
paragraphs 8 to 12:
“8. Further, it is pointed out that the allegation  of  alleged  demand  for
dowry was made for the first time in December 1994. In the complaint  filed,
the allegation is that the dowry torture was made sometime in 1992.  It  has
not been explained as to why for more than two years no action was taken.

9. Further, it appears  that  in  the  complaint  petition  apart  from  the
husband,  the  mother  of  the  husband,  the  subsequently  married   wife,
husband’s mother’s sister,  husband’s  brother-in-law  and  Sunita’s  father
were impleaded as party. No role has been specifically ascribed  to  anybody
except the husband and that too of a dowry demand in February 1993 when  the
complaint was filed on 6-12-1994 i.e. nearly after 22 months. It  is  to  be
noted that in spite of service of notice, none has  appeared  on  behalf  of
Respondent 1.

10. The parameters for exercise of power under Section 482  have  been  laid
down by this Court in several cases.

11. “19. The  section  does not confer any new power on the High  Court.  It
only  saves  the  inherent  power  which  the  Court  possessed  before  the
enactment of the Code. It envisages  three  circumstances  under  which  the
inherent jurisdiction may be exercised, namely, (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. It is  neither  possible  nor
desirable to lay down any inflexible rule which would  govern  the  exercise
of inherent jurisdiction. No legislative enactment  dealing  with  procedure
can provide for all cases that may possibly arise. Courts,  therefore,  have
inherent powers apart from express provisions of  law  which  are  necessary
for proper discharge of functions and duties imposed upon them by law.  That
is  the  doctrine  which  finds  expression  in  the  section  which  merely
recognises and preserves inherent powers of the  High  Courts.  All  courts,
whether  civil  or  criminal,  possess,  in  the  absence  of  any   express
provision, as inherent  in  their  constitution,  all  such  powers  as  are
necessary to do the right and to undo a wrong in  course  of  administration
of justice on the principle quando lex aliquid  alicui  concedit,  concedere
videtur id sine quo res ipsa esse non potest (when the law  gives  a  person
anything it gives him that without which it cannot exist). While  exercising
powers under the section, the Court does not function as a court  of  appeal
or revision. Inherent jurisdiction under the section though wide has  to  be
exercised sparingly, carefully and with caution and only when such  exercise
is justified by the tests specifically laid down in the section  itself.  It
is to be exercised ex debito justitiae to do real  and  substantial  justice
for the administration of which alone courts exist. Authority of  the  court
exists for advancement of justice and if any attempt is made to  abuse  that
authority so as to produce injustice, the court has power to prevent  abuse.
It would be an abuse of process of the  court  to  allow  any  action  which
would result in injustice and prevent promotion of justice. In  exercise  of
the powers court would be justified to quash  any  proceeding  if  it  finds
that initiation/continuance of it amounts to abuse of the process  of  court
or quashing of these proceedings would otherwise serve the ends of justice.

20. As noted above, the powers possessed by the  High  Court  under  Section
482 of the Code are very wide and the very plenitude of the  power  requires
great caution in its exercise.  Court  must  be  careful  to  see  that  its
decision in exercise of  this  power  is  based  on  sound  principles.  The
inherent power should not be exercised to stifle a  legitimate  prosecution.
The High Court being the highest court of a State  should  normally  refrain
from giving a prima facie decision in a case  where  the  entire  facts  are
incomplete and hazy, more so when the evidence has not  been  collected  and
produced before the Court  and  the  issues  involved,  whether  factual  or
legal, are of magnitude  and  cannot  be  seen  in  their  true  perspective
without sufficient material. Of course, no hard-and-fast rule  can  be  laid
down in  regard  to  cases  in  which  the  High  Court  will  exercise  its
extraordinary jurisdiction of quashing the proceeding at any stage.”

[See Janata Dal v. H.S. Chowdhary, Raghubir Saran (Dr.) v.  State  of  Bihar
and Minu Kumari v. State of Bihar, SCC p. 366, paras 19-20.]

12.  The  present  case  appears  to  be  one  where  Category  7   of   the
illustrations  given  in  State  of  Haryana  v.  Bhajan  Lal   is   clearly
applicable.


26.   From the material on records, following facts are disclosed  from  the
sequence of events which preceded the registration  of  FIR  on  06.11.2015.
The complainant, her husband and son had taken different  amounts  totalling
Rs.22 lakh 50 thousand in the month of May, 2015 for business/shop  purposes
from the accused.  Three  agreements  were  written  on  Non-Judicial  Stamp
Papers on 29.05.2015, 01.06.2015 and  31.08.2015  wherein  complainant,  her
husband and son have acknowledged receipt of the money in cash  as  well  as
by cheque. Cheques of Rs. 6 lakh, Rs.14  lakh  50  thousand  were  given  to
accused for ensuring the repayment.  Cheques  were  drawn  on  the  Prathama
Bank, Kanth Branch, District Moradabad. Cheques were deposited in  the  Bank
which  were  returned  with  endorsements  “No  Sufficient  Balance”.  After
cheques having been dishonoured, complaints under Section 138 of  Negotiable
Instruments Act were filed by the accused against the  husband  and  son  of
the complainant which were registered in the month of September/October  and
were pending before alleged incident dated 22.10.2015.

27.   The complainant alleges rape by the  accused  on  22.10.2015  at  7.30
p.m. at her house and alleges that on the same day she went  to  the  Police
Station but FIR was  not  registered.  She  states  that  after  sending  an
application on 26.10.2015  to  the  SSP,  she  filed  an  Application  under
Section 156(3) Cr.P.C. before the Magistrate. There  is  no  medical  report
obtained by the complainant except medical report dated  20.11.2015.  IO  on
07.11.2015 when asked the  complainant  to  get  medical  examination  done,
complainant and her husband refused. The  incident  having  taken  place  on
22.10.2015 at 7.30 p.m. nothing was done by the complainant and her  husband
till 26.10.2015 when she alleges the Application  was sent to SSP.

28.   During investigation, IO has recorded the  statements  of  brother  of
complainant's husband as well as Smt. Bina Vishnoi, the  wife  of  husband's
brother who were residing in the same house and  have  categorically  denied
that any incident happened in their house. Both,  in  their  statements  and
affidavits have condemned the complainant for lodging a false report.

29.   IO collected affidavits of several  persons  including  affidavits  of
Nikesh Kumar and Smt. Bina Vishnoi and on  collecting  the  entire  material
and visiting the spot IO had come to the conclusion that  no  such  incident
took place and submitted a Final  Report  dated  29.11.2015.  On  29.11.2015
itself, the IO has submitted another report for prosecution  of  complainant
under Section 182 Cr.P.C. for giving false information  to the Police.

30.   After submission of Final  Report  and  submissions  of  Report  under
Section 182 Cr.P.C. dated 29.11.2015 complainant filed  a  Protest  Petition
on 07.01.2016.

31.   It is true that  in  the  statement  under  Section  164  Cr.P.C,  the
complainant repeated her allegation. Complainant has also recorded  her  age
in the statement as 47 years.

32.   The Magistrate in allowing the Protest Petition  only  considered  the
submission made by the State while summoning  the  accused  in  paragraph  6
which is to the following effect:
"6.   In compliance with the order passed by  the  Hon'ble  High  Court  and
from the perusal of evidence and entire case diary this Court comes  to  the
conclusion that the complainant is  required  to  be  registered  as  police
complainant and there are sufficient grounds to  summon  the  accused  Vinit
Kumar, Sonu and Nitendra for their trial under Section 376D, 323 and 352  of
Indian Penal Code.”


33.   Learned  Sessions  Judge  has  also  affirmed  order  taking  note  of
statement under Section 164 Cr.P.C.

34.   There was sufficient material on record to indicate  that  there  were
financial transactions between the accused and complainant, her husband  and
son. On dishonour of cheques issued  by  the  complaint's  husband  and  son
proceedings under Section 138 of Negotiable  Instruments  Act  were  already
initiated by the accused. All family members of the complainant were  living
in the same house. Brother of husband and  his  wife,  in  their  statements
before the IO have admitted monetary transactions of his  brother  with  the
accused. The statements before the IO of both  the  Nikesh  Kumar  and  Smt.
Bina Vishnoi have already been extracted above, which were part of the  Case
Diary and was material which ought  to  have  been  looked  into  which  was
submitted by the IO in the Final Report.
35.   The fact is that no medical examination was got done on  the  date  of
incident or even on the next  day  or  on  07.11.2015,  when  IO  asked  the
complainant  and  her  husband  to  get  done   the   medical   examination.
Subsequently it was done on 20.11.2015, which was wholly  irrelevant.  Apart
from bald assertions by the complainant that all accused have  raped,  there
was nothing which could have led the Courts to form an opinion that  present
case is fit a case of  prosecution  which  ought  to  be  launched.  We  are
conscious that statement given by the prosecutrix/complainant under  Section
164 Cr.P.C. is not  to  be  lightly  brushed  away  but  the  statement  was
required to be considered along with antecedents,  facts  and  circumstances
as noted above. Reference to the judgment of this Court in  Prashant  Bharti
vs. State(NCT of Delhi), 2013 (9) SCC  293,  is  relevant  for  the  present
case. In the above case the complainant lady aged 21  years  lodged  an  FIR
under Section 328 and 354 IPC with regard to the incident dated  15.02.2007.
She sent a telephonic information  on 16.02.2007 and on  her  statement  FIR
under Sections 328 and 354 IPC was registered against the  appellant.  After
a lapse of five days  on  21.02.2007  she  gave  a  supplementary  statement
alleging rape by the appellant on  23.12.2006,  25.12.2006  and  01.01.2007.
Statement under Section 164 Cr.P.C. of the prosecutrix was recorded.  Police
filed  charge-sheet  under  Section  328,  324  and  376  IPC.  Charge-sheet
although mentioned that no proof in support of crime under  Section  328/354
could be found. However, on the ground of statement made under  Section  164
Cr.P.C. charge-sheet was submitted.  Paragraph  10  of  the  judgment  which
notes the charge-sheet is as follows:

“     10. On 28.6.2007,  the  police  filed  a  chargesheet  under  Sections
328,354 and 376 of the  Indian  Penal  Code.  In  the  chargesheet,  it  was
clearly mentioned, that the police  investigation,  from  different  angles,
had not yielded any positive result. However, the chargesheet was  based  on
the statement made by the complainant/prosecuterix before  the  Metropolitan
Magistrate, New Delhi under Section 164 of the Code of  Criminal  Procedure,
which was found to be sufficient for  the  charges  alleged  -  against  the
appellant-accused. A relevant  extract  of  the  chargesheet  depicting  the
aforesaid factual position, is being reproduced below:-

“I the Inspector, tried my best from all angles to recover the  intoxicating
substance/Pepsi/Pepsi glass and undergarments worn at the time of the  rape.
But nothing could be recovered and for this  reason,  the  blood  sample  of
accused could not  be  sent  to  FSL.  As  from  the  investigation  so  far
conducted, no proof could be found in support  of  the  crime  under Section
328/354 IPC and  even  the  position  of  accused  Prashant  Bharti  is  not
available at Lodhi Colony at the date and time  as  his  mobile  phone  ill.
However, prosecuterix Priya  Porwal  made  statement  on  21.2.2007  and  on
27.2.2007 under Section 164 Cr.P.C. which is sufficient in  support  of  his
challan for the offence under Section 376 IPC.”

              (emphasis supplied)”


36.   Writ petition was filed by the accused for quashing the FIR which  was
dismissed by the High Court on 27.08.2007. Thereafter, charges  were  framed
on 01.12.2008. Dissatisfied with the framing of  charges  Criminal  Revision
Petition was filed which was dismissed by Delhi  High  Cort  on  16.01.2009.
The order of Additional Sessions Judge has been extracted by this  Court  in
paragraph 14 which is quoted below:
“14. Dissatisfied with the action of the  trial  Court  in  framing  charges
against him, the appellant-accused filed Criminal Revision Petition  no.  08
of 2009, whereby he  assailed  the  order  dated  1.12.2008  passed  by  the
Additional Sessions Judge, New Delhi. The Delhi  High  Court  dismissed  the
revision petition on 16.1.2009, by inter alia observing as under:-

“12. Truthfulness or falsity of the  allegations,  essentially  pertains  to
the realm of evidence and the same cannot  be  pre-judged  at  this  initial
stage. I do not find any illegality or  infirmity  in  the  impugned  order.
Consequently, this Revision Petition is dismissed in limine while making  it
clear that anything herein shall not be construed as an  opinion  on  merits
at trial.””


37.   The appeal was filed against the aforesaid judgment of the High  Court
by the accused contending that there was sufficient  material  collected  in
the investigation which proved  that  allegations  were  unfounded  and  the
prosecution of the appellant was an  abuse  of  process  of  the  Court.  In
paragraph 23 this Court noted several circumstances on the  basis  of  which
this Court held that judicial conscience of the High  Court  ought  to  have
persuaded it to quash the criminal proceedings. This Court  further  noticed
that Investigating Officer has acknowledged, that  he  could  not  find  any
proof to substantiate the charges. The charge-sheet had been filed  only  on
the basis of the statement of the complainant/prosecutrix under Section  164
Cr.P.C. In paragraphs 24 and 25 of the judgment following was stated:
“24. Most importantly, as against the aforesaid  allegations,  no  pleadings
whatsoever have been filed by the complainant. Even  during  the  course  of
hearing, the material relied upon by the  accused  was  not  refuted.  As  a
matter of fact, the complainant/prosecutrix had herself approached the  High
Court, with the  prayer  that  the  first  information  lodged  by  her,  be
quashed. It would therefore be legitimate to  conclude,  in  the  facts  and
circumstances of this case, that the material relied  upon  by  the  accused
has not been refuted by the  complainant/prosecutrix.  Even  in  the  charge
sheet dated 28.6.2007,  (extracted  above)  the  investigating  officer  has
acknowledged, that he could not find any proof to substantiate the  charges.
The charge-sheet had been filed only on the basis of the  statement  of  the
complainant/prosecutrix under Section 164 of the Cr.P.C.



25. Based on the holistic  consideration  of  the  facts  and  circumstances
summarized in the foregoing two paragraphs; we are satisfied, that  all  the
steps delineated by this Court  in  Rajiv  Thapar’s  case  (supra)  stand  -
satisfied. All the steps  can  only  be  answered  in  the  affirmative.  We
therefore  have  no  hesitation  whatsoever  in  concluding,  that  judicial
conscience of the High Court ought to have persuaded it,  on  the  basis  of
the material available before it,  while  passing  the  impugned  order,  to
quash the criminal proceedings initiated against the  accused-appellant,  in
exercise of the inherent powers vested  with  it  under Section  482 of  the
Cr.P.C. Accordingly, based on the  conclusions  drawn  hereinabove,  we  are
satisfied, that  the  first  information  report  registered  under Sections
328, 354and 376 of the Indian Penal Code against the appellant-accused,  and
the consequential chargesheet  dated  28.6.2007,  as  also  the  framing  of
charges by the Additional Sessions Judge, New Delhi on  1.12.2008,  deserves
to be quashed. The same are accordingly quashed.”



38.   Thus, above was the case where despite  statement  under  Section  164
Cr.P.C. by prosecutrix the Court  referring  to  material  collected  during
investigation had held that the case was fit where the High Court  ought  to
have quashed the criminal proceedings.

39.   Inherent power given to the High Court under Section  482  Cr.P.C.  is
with the purpose and object  of  advancement  of  justice.  In  case  solemn
process of Court is sought to be  abused  by  a  person  with  some  oblique
motive, the Court has to thwart the  attempt  at  the  very  threshold.  The
Court cannot permit a prosecution to go on if the case falls in one  of  the
Categories as illustratively enumerated by this Court in  State  of  Haryana
vs. Bhajan Lal. Judicial process is a  solemn  proceeding  which  cannot  be
allowed to be converted into an instrument of operation or harassment.  When
there are material to indicate that a  criminal  proceeding   is  manifestly
attended with mala fide and proceeding is  maliciously  instituted  with  an
ulterior motive, the High  Court  will  not  hesitate  in  exercise  of  its
jurisdiction under  Section  482  Cr.P.C.  to  quash  the  proceeding  under
Category 7 as enumerated in State of Haryana vs. Bhajan  Lal,  which  is  to
the following effect:
“(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.”


Above Category 7 is clearly attracted in the  facts  of  the  present  case.
Although, the High Court has noted the judgment of the State of Haryana  vs.
Bhajan Lal, but did not advert to the relevant facts of  the  present  case,
materials on which Final Report was submitted  by  the  IO.  We,  thus,  are
fully satisfied that the present is a fit case where  High  Court  ought  to
have exercised its jurisdiction under Section 482 Cr. P.C. and  quashed  the
criminal proceedings.

40.   In the result, appeal is allowed,  the  judgment  of  the  High  Court
dated  16.12.2016  as  well  as  the  order  of  Additional  Chief  Judicial
Magistrate dated 03.08.2016 and  the  order  of  the  Sessions  Judge  dated
22.10.2016 including the entire criminal proceedings are quashed.

                                                     .....................J.
                                                   ( A. K. SIKRI )



                                                     .....................J.
                                                 ( ASHOK BHUSHAN )

New Delhi,
March 31,2017.


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